M. GURURAJA RAO v. GOVERNMENT OF INDIA — 1974 DIGILAW 160 (KAR)

( 1 ) THE petitioner is a class II officer working in the office; of the Accountant general in Karnataka In this writ petition he has prayed for the issue of a writ in the nature of mandamus to the Union Government the Comptroller and Auditor General of India and the Accountant General in Karnataka to consider his case for promotion to class I cadre without reference to Paras j10 and 112 of the Manual of Standing Orders (Administrative) (Vol. I) hereinafter referred to as the Standing Orders issued by the Comptroller and Auditor General of India. Inter-alia he has requested the Court to quash Paras 110 and 112 of the Standing Orders as being violative of Arts 14 and 16 of the Constitution of India. He has also prayed for the issue of a writ in the nature of mandamus to the Union Government to frame rules under Clause (5) of Art. 148 of the Constitution providing for promotion from Class II cadre to Class I cadre in the Indian Audit and Accounts Service on the basis of seniority. ( 2 ) BRIEFLY stated the case of the petitioner is as follows. The petitioner has been holding a post of Class II officer on permanent basis with effect from 31-10-1962. In the gradation list maintained by the accountant General in Karnataka his name is shown above the names of two persons by name K. S. Sarangapani and K. Sundaram. Notwithstanding the fact that the petitioner is senior to these two persons and that his record of service has been very clean all through the departmental committee at the State Level which is entrusted with the duty of recommending officials belinging to Class II cadre for being considered for promotion to Class I cadre had recommended the names of thosatwo persons. ( 3 ) IT is contended that the recommendation made by the departmenlal committee at the State level suffered from arbitrariness and hence the entire proceedings leading to the recommendation made by the departmental committee at the State level were vitiated. ( 3 ) IT is contended that the recommendation made by the departmenlal committee at the State level suffered from arbitrariness and hence the entire proceedings leading to the recommendation made by the departmental committee at the State level were vitiated. It is further submitted that parag 110 and 112 of the; Standing Orders not having been promulgated under clause 5 of Art. 148 of the Constitution had no force of law and hence in the absence of any Cadre and Recruitment Rules governing the question of promotion of officials from Class II Cadre to Class I cadre it was impermissible for the Union Government to make appointments on the basis of the recommendations made by the departmental committee at the State level. In the statement of objections filed on behalf of the respondents the allegation made by the petitioner that there were no rules governing the question of promotion of officials from Class II cadre to Class I cadre is denied. It is pleaded that the said question is governed by the rules regulating recruitment to the Indian Audit and Accounts Service (hereinafter referred to as the Rules) promulgated by the Governor General in Cquncil on April 30 1938 and published in the Gazette of India Exy. dated May 4 1968. The attention of the Court is drawn to rule 21 of the Rules which provides that recruitment by promotion to Class I of the Indian Audit and accounts Service should be made by Selection from among the gazetted subordinates and ministerial establishments of the service concerned after consultation with the Union Public Service Commission. It is also alleged that certain subsidiary instructions have been issued by the Union Government in order to implement effectively rule 21 of the Rules and that they are contained in the letter dated April 6 1362 addressed by the Secretary to Government of India Ministry of Finance to the Comptroller and Auditor general of India the reply of the Comptroller and Auditor General of india dated April 7 1962 and the letter dated Feb. 22 1962 addressed by the Comptroller and Auditor General of India to the several Accountants general working under him. 22 1962 addressed by the Comptroller and Auditor General of India to the several Accountants general working under him. It is contended that rule 21 of the Rules the instructions contained in the letters referred to above and the act of selection on the part of the departmental committee at the State level and at the Union level were in conformity with Arts. 14 and 16 of the Constitution of India and therefore the allegation that so far as the petitioner is concerned there has been denial of equal opportunity in the matter of employment was not well founded. It is also pleaded that the Departmental committee on a consideration of the case of the petitioner was of the view that he was not so meritorious as to be considered fit for promotion from the summary of pleadings of the parties set out above two principal questions arise for consideration in this case: (1) Whether there are any rules having the force of law governing the question of promotion of officials belonging to Class II Cadre to Class I cadre in the Indian Audit and Accounts Service? and (2) Whether there has been infraction of Arts. 14 and 16 of the constitution of India in so far as the petitioner is concerned? ( 4 ) IN order to examine whether the Rules have the force of law or nut it is necessary to refer to the Government of India Act 1915 Government of india Act 1935 and Art. 313 of the Constitution. Sec. 96b of the Government of India Act 1915 made provision for the regulation of civil services in India. Sub-Sec. (2) of S. 96b of the Act which is relevant for the purpose of this case read as follows:"the Secretary of State in Council may make rules for regulating the classification of the civil services in India the methods of their recruitment their conditions of services pay and allowances and discipline and conduct. Sub-Sec. (2) of S. 96b of the Act which is relevant for the purpose of this case read as follows:"the Secretary of State in Council may make rules for regulating the classification of the civil services in India the methods of their recruitment their conditions of services pay and allowances and discipline and conduct. Such rules may to such extent and in respect of such matters as may be prescribed delegate the power of making rules to the Governor General in Council or to local Governments or authorise the Indian Legislature or local legislatures to make laws regulating the Public services: provided that every person appointed before the commencement of the Government of India Act 1919 by the Secretary of State in Council to the Civil service of the Crown in India shall retain all his existing or accruing rights or shall receive such compensation for the loss of any of them as the Secretary of State in Council may consider just and equitable. " ( 5 ) IN exercise of the power conferred on him under sub-sec. (2) of S. 96b of the Government of India Act 1919 the Secretary of State for India promulgated the Civil Services (Classification Control and Appeal) Rules on may 27 1930. Rule 14 of the said Rules classified the public services in india into six categories viz. (1) All India Services (2) Central Services class I (3) Central Services Class II (4) Provincial Services; (5) Specialist services and (6) the Subordinate Services. Rule 16 of the said C. C. A. Rules provided that Central Services Class I should consist of services included in Sch. II of the said Rules. At Serial No. 1 in Sch. II of the said Rules we find Indian Audit and Accounts services. The method of recruitment to Central Services Class I is dealt with by part IV of the said Rules. Rule 30 in part IV provided that save as provided by Rules 28 and 29 (to which it is unnecessary to refer for our purpose) all first appointments to the Central Services Class I should be made by the Governor General in Council. Rule 30 in part IV provided that save as provided by Rules 28 and 29 (to which it is unnecessary to refer for our purpose) all first appointments to the Central Services Class I should be made by the Governor General in Council. Rule 31 of the C. C. A. Rules which is relevant for the purpose of this case read as follows:"31 (1) Rules regulating the methods ol recruitment to the Indian ecclesiastical Establishment and the Indian Political Department and to those portions of the Superior Telegraph Engineering and Wireless branches of th Indian Posts and Telegraphs Department which are recruited outside India shall be made by the Secretary of State in council. (2) Save as provided in sub-rule (1) the power to make rules regulating the methods of recuitment to the Central Services Class I is hereby delegated to the Governor General in Council". ( 6 ) THE operation of the Civil Services (Classification Control and Appeal) rules was saved and continued by Sec. 376 of the Government of India Act 1935 which read as follows- "until other provision is made under the appropriate provisions of this part of this Act any rules made under the Government of India act reflating to the Civil Services of or Civil Posts under the Crown in india which were in force immediately before the commencement of part III of this Act shall notwithstanding the repeal of that Act continue in force so far as consistent with this Act and shall be deemed to be rules made under the appropriate provisions of this Act. " sec. 277 (1) of the Government of India Act 1935 deifned the expressions "all India Service' 'central Service Class I' 'central Services Class II' ' 'railway Service Class I' 'railway Service Class II' and 'provincial Service' as meaning respectively the services which were immediately before the commencement of Part III of the Government of India Act 1935 so described respectively in the classification rules then in force under S. 96b of the government of India Act 1915. It is in exercise of the power conferred under Subrule (2) of Rule 31 of the C. C. A. Rules the Governor General in Council promulgated the Rules on April 30 1938 after the Government of India Act 1935 came into force. It is in exercise of the power conferred under Subrule (2) of Rule 31 of the C. C. A. Rules the Governor General in Council promulgated the Rules on April 30 1938 after the Government of India Act 1935 came into force. Under the Constitution the power to make rules relating to the conditions of service of the employees constituting the Indian Audit and Accounts Service is conferred on the President under Clause (5) of Art. 143 of the Constitution which reads as follows: -"148 (5): Subject to the provisions of this Constitution and of any law made by Parliament the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the. President after consultation with the Comptroller and Auditor General. " ( 7 ) AS stated in clause (5) of Art. 148 the power to make rules was subject to the other provisions of the Constitution. Article 313 of the Constitution provides as follows:- "until other provision is made in this behalf under this Constitution all the laws in force immediately before the commencement oi this constitution and applicable to any public saivice or any post which continues to exist after the commencement of this Constitution as an all India service; or as service or post under the Union cr a State shall continue in force so far as consistent with the provisions of this Constitution. " ( 8 ) IT is not the case of the petitioner that in exercise of the power conferred under clause (5) of Art. 148 of the Constitution the President has made any rule so far which has the effect of abrogating the Rules. It has therefore to be held that the rules made by the Governorgeneral in Council on april 30 1938 continue to be in force even today. My view in this regard receives support from the three decisions of the Supreme Court in Shyamlal v. State of U. P. , AIR. 1954 SC. 369. in Venkataraman v. Union of India, AIR. 1954 SC. 375. and in State of U. P. v. Babu Ram Upadhya, AIR 1961 SC 751 . My view in this regard receives support from the three decisions of the Supreme Court in Shyamlal v. State of U. P. , AIR. 1954 SC. 369. in Venkataraman v. Union of India, AIR. 1954 SC. 375. and in State of U. P. v. Babu Ram Upadhya, AIR 1961 SC 751 . In the three cases referred to above the Supreme Court was of the view that by virtue of Art. 313 of the constitution the Rules made in exercise of the powers conferred under S. 96-B (2) of the Government of India Act 1915 and the rules made in exercise of the powers conferred by rule 31 of the C. C. A. Rules by the Governor General in Council were valid and enforceable. ( 9 ) PARAS 110 and 112 of the Standing orders which have been alluded to in 1he course of the petition of the petitioner are only in the nature of administrative instructions issued by the Comptroller and Auditor General of India and they are not and cannot be in conflict with rule 21 of the rules. It is the case of the Umon Government that paras 110 and 112 of the standing Orders are not at all material for the purpose of this case and it is rightly so; because they are not made either under the Civil Services (Classification Control and Appeal) Rules 1930 or under Art. 148 (5) of the Constitution. I therefore hold that the question of promotion of officials from Class II cadre to Class 1 cadre in Indian Audit and Accounts Services is governed by Rule 21 of the Rules. ( 10 ) THE next question that arises for consideration in this case relates to the plea urged on behalf of the petitioner that there has been violation of arts. 14 and 16 of the Constitution. Rule 21 which deals with the question of promotion reads as follows -"21. Recruitment by promotion shall be made by selection from among the sub-ordinate gazetted and ministerial establishments of the service concerned after consultation with the Commission and the officer selected will be appointed by Government. No officer shall have any claim to such promotion as of right. " ( 11 ) THE expression 'commission' in the above rule refers to the Union Public service Commission. No officer shall have any claim to such promotion as of right. " ( 11 ) THE expression 'commission' in the above rule refers to the Union Public service Commission. It is argued on behalf of the petitioner that rule 21 is void because it is hit by Arts. 14 and 16 of the Constitution. It is urged that Rule 21 does not lay down any criteria which should guide the authorities concerned in the matter of the promotion of the officials from Class II cadre to Class I cadre and therefore it confers an arbitrary power on the authorities. The expression 'selection' appearing in Rule 21 has attained a specific meaning in the administrative circles. According to Oxford Dictionary the expression 'selected' means 'chosen out of a large number on account of excellense or fitness; composed or containing the best choice or most desirable'. The said expression has also come up for interpretation before courts of law. In Janaki Prasad Parimaoo v. State of J and K, AIR. 1973 SC. 930. the supreme Court had occasion to consider the meaning of the expression 'selection' when it was used in connection with the promotion of officials from a lower cadre to a higher cadre. In para 19 of the said decision the supreme Court observed ag follows: -"the second consideration is the wholly inept way of making selections. Selection means that the man selected for promotion must be of merit. Where promotion is by seniority merit takes the second place but when it is a selection merit takes the first place and it is implicit in such selection that the man must not be just average. " ( 12 ) THE considerations that should weigh with an authority which is empowered to make promotion on the basis of merit are dealt with by the Supreme court in Guman Singh v. State of Rajasthan, (1971) 2 SCC. 452 . In that case the Supreme court was deaing with a case in which 50% of the posts in the higher cadre had to be filled up on the basis of merit and the remaining 50% of the posts bad to be filled up on the basis of seniority-cum-merit. 452 . In that case the Supreme court was deaing with a case in which 50% of the posts in the higher cadre had to be filled up on the basis of merit and the remaining 50% of the posts bad to be filled up on the basis of seniority-cum-merit. Dealing with the relevant rules the Supreme Court observed in para 35 at page 468 as follows:-"rule 32 in essence adopts what is stated in Rule 28-B. The latter rule provides for two methods of selection; one based on merit and the other based on seniority-cum-merit. In other words the rule provides that the promtion based on merit in contra distinction to that based on seniority-cum-merit shall strictly be on the basis of merit. The Selection committee and the Promotion Committee consist of very responsible and senior officers of the State and being persons of experienca they can be trusted to evaluate the merits of a particular officer. NO doubt the term 'merit' is not capable of an easy definition but it can be safely said that merit is a sum total of various qualities and attributes of an employee such as his academic qualifications his distinction in the University his character integrity devotion to duty and the manner in which he discharges his official duties. Allied to this may be various other matters or factors such as his punctuality in work quality and out-turn of work done by him and the manner of his dealings with his superiors and subordinate officers and the general public and his rank in the service. We are only indicating some oi the broad aspects that may be taken into account in assessing the merits of an officer. In this connection it may be stated that the various particulars in the annual confidential reports of an officer if carefully and properly noted will also give a very broad and general indication regarding the merit of an officer. Therefore it cannot be stated that Rules 28-B and 32 are in any manner vague or do not give any guide line for assessing the merit of an officer. . . . . . " ( 13 ) IT is therefore clear from the enunciation made by the Supreme Court that the expression "selection" used in Rule 21 is not an expression which is capable of being misused or abused by the authority. . . . . . " ( 13 ) IT is therefore clear from the enunciation made by the Supreme Court that the expression "selection" used in Rule 21 is not an expression which is capable of being misused or abused by the authority. It is implicit in the very expression that the authority which is entrusted with the duty of recommending a person for promotion should bear in mind that having regard to the conditions prevailing in the concerned service a person possesing outstanding merit alone should be recommended and persons of average order should not be recommended. One other aspect of the case which should be borne in mind is that the power to promote a person is vested with the Union Government. It is now well settled that when discretionary power is vested in a high authority like the State Government or the Union Government it should not be easily assumed that the said power is likely to be abused even though there are no express rules laying down the factors which should govern the exercise of such discretion while considering the validity of S. 2 (1) (a) of the Punjab Special Powers (Press) Act 1956 the Supreme Court repelled the contention that the said provision which conferred unfettered powers on the State Government was violative of Art 14 of the Constitution in Virendra v. State of Punjab, AIR 1957 SC 896 . at para 12 as follows:-"it is said that the sections give unfettered and uncontrolled discretion to the State Government or to the officer authorised by it in the exercise of the drastic powers given by the sections. We are referred to the observations of Mukherjea J: in Dwaraka Prasad Laxmi Narain v. The State of V. P. 1954 SCR. 803 at p. 813, AIR 1954 SC 224 . That case does not seem to us to have any application to the facts of this case. ( 14 ) IN the first place the discretion is given in the first instance to the state Government itself and not to a very subordinate officer like the licensing officer as was done in Dwaraka Pasad's case. That case does not seem to us to have any application to the facts of this case. ( 14 ) IN the first place the discretion is given in the first instance to the state Government itself and not to a very subordinate officer like the licensing officer as was done in Dwaraka Pasad's case. It is true that the State Government may delegate the power to any officer or person but the fact that the power of delegation is to be exercised by the state Government itself is some safeguard against the abuse of this power of delegation. " ( 15 ) LATER on in the same judgment it was observed by the Supreme Court as follows: -"no assumption ought to be made that the State Government or the authority will abuse its power. To make the exercise of the power justiciable will defeat the very purpose for which the power is given. Further even if the officer may conceivably abuse the power what will be struck down is not the statute but the abuse of power. " ( 16 ) WHILE reaching the above conclusion the Supreme Court reiterated its earlier view in Harishankar Bagla v. State of M. P. , AIR. 1054 SC. 465. that the dictum of Mukherjeaj. : in Dwaraka Prasad Laxmi Narain v. State of U. P. , AIR 1954 SC. 224 . could have no application to a law which sets out its underlying policy so that the order to be made under the law was to be governed by that policy and the discretion given to the authority was to be exercised in such a way as to effectuate that policy and the conferment of such a discretion so regulated could not be called invalid. ( 17 ) WE are in this case concerned with a role providing for promotion to class I cadre in the Indian Audit and Accounts Service. The procedure which is followed in connection with the selection of officers for promotion from Class II cadre to Class I cadre is set out in the statement of objections There are in all abqut 2700 officers whose cases have to be considered on every occasion when the recommendation has to be made for purposes of promotion under Rule 21. Those officers are working under the different charges of the several Accountants-General. Those officers are working under the different charges of the several Accountants-General. It is stated that the total number of posts in the Class I Cadre of Indian Audit and accounts Service is in the order of 237 and out of them only twenty per cent have to be filled up by promotion and the remaining eighty per cent have to be filled up by direct recruitment as can be seen from para 112 of the Manual of Standing Orders. It is further stated that on an average seven or eight posts in Class I cadre which require to be filled up by promotion fall vacant every year. It is in order to fill up those seven or eight posts the authorities have to consider the cases of about 2700 officials working under several Accountants-General as already mentioned According to the Union Government in order to effectively consider the cases of all the officials a specific procedure has been laid down and that procedure was laid down in consultation with the Comptroller and Auditor General of india. The said procedure can be gathered from the letter dated 6-4-1962 written by the Secretary to Government of India Ministry of Finance tq the Compteoller and Auditor General of India the letter dated 7-4-1962 written by the Comptroller and Auditor General of India to the Secretary ministry of Fnance; and the letter dated 22-2-1962 written by the comptroller and auditor General of India to the various Accountants-General. ( 18 ) THE contents of those letters are summarised in the statement of objections in paras 9 and 10 as follows:-"in 1962 the procedure to be followed for selection of officers was elaborated by the Ministry of Finance and the Comptroller and Auditor genera) of India in consultation with the approval of the Union Public service Commission. ( 18 ) THE contents of those letters are summarised in the statement of objections in paras 9 and 10 as follows:-"in 1962 the procedure to be followed for selection of officers was elaborated by the Ministry of Finance and the Comptroller and Auditor genera) of India in consultation with the approval of the Union Public service Commission. Under that procedure Departmental Promotion committees should be set up in each of the Accountants-General's charges for an initial review of the records of all eligible Class II officers of that office and the various steps of selection as laid down with the approval of the Union Public Service Commission are as follows (A) Only officers who put in enough service in Class II will normally be considered eligible for promotion to the Indian Audit and accounts Service Subordmate Accounts Service Accountants will be considered for such promotion only in very exceptional cases; (B) The Departmental Promotion Committee will consider the cases of all those who are eligibre for promotion to the service; (C) The recommendations of the Departmental Promotion Committees will be sent in their entirety to the Union Public Service Commission; (D) The system of interview will be ended as a rule although the union Public Service Commission will always be free to interview any person qr group if they so desire. ( 19 ) IN accordance with the Rules quoted above and the procedure settled by the Government after consultation with the approval of the union Public Service Commission the recommendations of the Departmental promotion Committees received from each Accountant General or other head of department in the Indian Audit and Accounts department are forwarded by the office of the Comptroller and Auditor general in their entirety to the Union Public Service Commission. A departmental Promotion Committee headed by the Chairman or a member of the Union Public Service Commission decides whether the interviews for selection of persons for promotion to Indian Audit and accounts Service need be held and if so the persons who may be called for interview out of those recommended for consideration for promotion to Indian Audit and Accounts Service. The Departmental Promotion committee after interviewing the officers selected for interviews where it is decided to hold an interview makes its recommendations for promotion to Indian Audit and Accounts Service. The Departmental Promotion committee after interviewing the officers selected for interviews where it is decided to hold an interview makes its recommendations for promotion to Indian Audit and Accounts Service. The recommendations are sent to the Ministry of Finance for obtaining approval of the Union public Service Commission before issuing orders of promotion to indian Audit and Accounts Service. ( 20 ) IT is argued by Sri S. K. Venkataranga Iyengar learned counsel for the petitioner that notwithstanding the fact that the procedure to be followed in connection with the promotion of officials is as set out in Rule 21 and the letters of the year 1962 a summary of which is to be found in the statement of objections as there is no guidance regarding the manner in which the Departmental Committees at the State level should exercise their discretion and the requirement to take the seniority of the officials concerned into consideration being absent it should be held that the entire procedure is violative of Arts 14 and 16 of the Constitution. I have already held earlier that the expression 'selection' in Rule 21 itself implies that the authorities dealing with the question of promotion at different levels have to bear in mind the several factors which determine the excellence of an official such as mental alertness physical fitness sound discipline moral integrity loyalty to the State knowledge of Special and technical aspects wherever necessary good character and antecedents free from all blemish it has to be mentioned here that the Departmental Committee at the State- level consists of the Accountant General; the Senior Deputy Accountant general and the Deputy Accountant General (Administration ). II is urged on behalf of the respondents that these three officers who are to be presumed to know the official working under them and their antecedents would consider the cases of all eligible officials for making recommendations in the light of their character rolls. The character rolls maintained in the case of the officials in question is in Form No. V which is at page 211 in the Manual of Standing Orders Vol. J 1969 Edn It contains information regarding the educational qualifications of the officesr concerned the departmental examinations parsed by him the date from which h has been continuously offciating as an Accounts Officer and the date off confirmation. J 1969 Edn It contains information regarding the educational qualifications of the officesr concerned the departmental examinations parsed by him the date from which h has been continuously offciating as an Accounts Officer and the date off confirmation. It also contains information regarding his technical ability industry and application aptitude displayed for any special type of work initiative resourcefulness clarity of thought and expression tact and integrity. The character roll should also contain information about the physical fitness and the mental alertness. The confidential roll is prepared by a reporting officer and it is iewed by a superior officer who is designated as the reviewing officer. It is no doubt true that there are seyeral methods knqwn to the service laws by which the selection of an officer for a particular post can be made such a/3 examination interview examination-turn-interview and consideration based on the character rolls of the officier concerned. It cannot be said with any amount of certainty that any one of them would be absolutely free from any kind of criticism. While examining a case off this type the approach should not be either of a critic or of a sceptic. A critic may find several faults in the scheme adopted and a sceptic might have no faith in any of them. It is much more so in the case of a disappointed official because of the parsonal element involved. In the absence of any specific allegations of mala fides or improprieties which call for the interference by the courts it would not be proper for courts to strike down a procedure evolved for the purpose of recruitment of officials or for prompting them on the basis of mere suspicion. Suspicions amongst thoughts as Bacon observed are like bats amongst birds they ever fly by twilight certainly they are to be repressed or at the least wall guarded for they cloud the mind; they loose friends and they check with business whereby business cannot go on currently and constantly. What has to be observed is whether the method is a reasonable one which would satisfy the conscience of the court. It may be that in a given case notwithstanding the fact that the method adopted is a foolproof one any action taken by an officer might result in injustice on account of certain serious infirmities in the manner in which he has acted in that case. It may be that in a given case notwithstanding the fact that the method adopted is a foolproof one any action taken by an officer might result in injustice on account of certain serious infirmities in the manner in which he has acted in that case. But in the absence as already mentioned of any plea that the officers who have considered the case of the petitioner for promotion have dealt with him in an unjust way on account of extraneous reasons it has to be concluded that they have dealt with the matter in the manner selection will have to be made without any kind of bias or prejudice against the individual concerned. After the recommendations of the Departmental committee at the State level are received by the Union Government the matter is again referred to a Departmental Committee of which a member of the Union Public Service Commission is the Chairman and the recommendations made by the Departmental committee at the State level would again be reviewed in the light of the well known principles governing the case. The opinion of the Union -Public Service Commission is also sought under Art 320 (3) (b) of the Constitution. It is only thereafter the order of appointment is issued to a person who is promoted. Haying regard to the status of the persons who have a hand in the promotion of officials I am of the view that the charge of arbitrariness cannot be sustained. ( 21 ) IN Gunman Singh's case (5) referred to earlier the Supreme Court struck down a circular which had been issued by the Chief Secretary to the state of Rajasthan indicating in detail the manner in which the merit of a candidate should be assessed by the committee entrusted with the duty of making recommendations of candidates for promotion on the basis of merit. The Supreme Court was of the view that such instructions issued by the Chief Secretary instead of advancing the cause of justice hald actually hindered the determination of the cases within the bounds of Arts. 14 and 16 of the Constitution. The Supreme Court was of the view that such instructions issued by the Chief Secretary instead of advancing the cause of justice hald actually hindered the determination of the cases within the bounds of Arts. 14 and 16 of the Constitution. ( 22 ) IT was however argued by Sri Venkataranga Iyengar that in view of the admission made by the Union Government in its statement of objections that the seniority of the officials whose cases had been considered had been totally discarded as being of no relevance the committee had failed to take into consideration one very important factor which should ordinarily govern the question whether a person was fit for promotion or not. The learned addl Solicitor General who appeared for the Union Government contended that the plea of the Union Government that seniority had no relevance had been raised in the course of the statement of objections in answer to the plea of the petitioner that seniority was an important factor which must bo taken into consideration while making promotions to higher cadre. The learned Addl. Solicitor General relied upon the decision of the Supreme court in Jai Narayan Mishra v. State of Bihar, AIR 1971 SC. 1318 . in which Hegde J: speaking for the Court observed that in a case where promotion to a higher cadre had to be made by selection seniority of the officials concerned had no relevance and in such a case the prime factor which governed the selection was the merit of the candidate and merit alone. It is no doubt true that experience of an officer in a department is a relevant factor and this is something different from seniority of an officer. As can be seen from Form no. V the character roll maintained in the case of each of the officials information is available regarding the period during which an official had officiated continuously in the cadre in question. Hence the departmental committee before deciding whether a person is fit for promotion or not would have an idea of the experience of the official concerned which he may have gathered in the course of his service. Hence the departmental committee before deciding whether a person is fit for promotion or not would have an idea of the experience of the official concerned which he may have gathered in the course of his service. Sri Venkataranga lyengar tried to distinguish the decision of the Supreme Court in Mishra's case (9) relying upon the observations made in para 5 and contended that the said decision was applicable to an ex-cadre pogt but not to a post to be filled up by promotion. On going through the said paragraph I am unable to agree with the submission made by Sri Venkataranga lyengar. It reads as follows: -"the post of Director of Agriculture is admittedly an ex-cadre post. The selection to that post is made solely on the basis of merit. Merely because the Government in its letter to the Commission used the word 'promotion' the High Court should not h'ava treated the case as one of 'promotion'. The word 'promotion' used in the Government's letter was inappropriate word. What the Government really meant was selection of a person to be posted as the Director. The nature of the post cannot be changed by the Government's using the word "promotion". The post remains to be a selection post". ( 23 ) IT is not known whether under the rules prevailing in the State of Bihar from which the said case emanated promotion had to be made on the basis of seniority alone. The case however turned on the meaning to be given to the expression "selection" and selection according to their Lordships did not include the consideration of seniority. It cannot be said that the recommendations made by the Departmental committee in this case on the basis of the character roll is arbitrary. The importance of character rqil while deciding the question whether a man is fit for promotion or not has been explained by the Supreme Court in janaki Prasad's case (4) in para 17 at page 935 as follows: -" In his affidavit the Educational Secretary has admitted that such conifidential records were not made available to the Committee and that the reason given was as follows: - ' Necessary service records in respect of confidential rolls of character rolls of all the eligible candidates for the last few years were not available Moreover the number of candidates was very large'. It is rather extraordinary that such a statement should be made by a high official of the Goverment It is impossible to conceive that confidential reports were not available. The statement does not make it clear whether all the confidential reports were not available or only a few of them or for what years. The statement is so vague that it is difficult to accept it. Whenever appointments to gazetted posts are made and have to be approved by the Public Service Commission confidential reports must be forwarded to the Commission for otherwise it is difficult to see how the Public Service Commission can approve the appointments. ( 24 ) IT may happen that in a few cases the confidential records may be lost or missing. But to deprive the committee of the benefit of these reports on the ground that such reports of all the eligible candidates for the last few years were not available would be ridiculous. The very fact that some other reason was necessary to be given namely that the number of candidates was very large goes to show that the first reason given by the official was considered by him as not altogether satisfactory. All the available reports ought to have been produced before the committee and if any was lost or not available it was the duty of the Department to call for confidential reports afresh from authorities who had opportunities to observe the character and work of the teachers concerned. All the schools are Government schools and they must have been inspected from time to time by the Educational Officers or Inspectors. Their reports could have been called! to aid the Committee in its deliberations. We consider that the Committee was wrong in undertaking to make the selections on the basis of mere interviews. " ( 25 ) AN assessment of the worth of an official on the basis of the character roll by the three senior officers of the Departmental committee at the State level cannot therefore be characterised as an assessment made merely on a subjective basis and not an assessment made on an objective basis. At this stage it is convenient to dispose of two allied points raised on behalf of the petitioner. At this stage it is convenient to dispose of two allied points raised on behalf of the petitioner. The first contention is based on the assumption that there are no rules governing the question of promotion of officials from class II cadre to class I cadre. It is stated that the Government has no power to make a promotion of an official from a lower cadre to a higher cadre in the absence of Cadre and Recruitment Rules in exercise of its executive power. The second contention is that promotion of officials from a lower cadre to a higher cadre on the basis of merit only without reference to seniority would lead to nepotism favouritism and regionalism. Therefore the Court should hold that a promotion based on mere merit only is violative of Arts. 14 and 16 of the Consth. I do not think that there is any substance in either of these two contentions. Promotion is also a mqdq of appointment. It is open to the Union Government in exercise of its excutive power uncter Art. 73 of the Cqnstn to fill up posits in the central services in view of Entry 70 in List 1 of the 7th Sch of the Constn which refers to Union Public Services. Dealing with. Art. 162 of the Constn which confers similar powers on the State Gqvt in relation to matters enumerated in List 2 of the 7th Sch of the Constn the Supreme Court observed in Nagarajan v. State of Mysore, AIR 1966 SC. 1942 . that it was open to the State govt to make appointments in exercise of its executive power even though the Cadre and Recruitment Rules framed under Art. 309 of the Constn were not in force. Sri Iyengar tried to distinguish Nagarajan's case (10) from the case on hand on the ground that in Nagarajan's case (10) Supreme court was concerned with the case of an initial appointment and not with the case of appointment by promotion. I do not think that there can be any distinction between the power of Govt to make an appointment at an initial stage and the power of the Government to appoint an official in a higher caare by promqting him from a lower cadre. I do not think that there can be any distinction between the power of Govt to make an appointment at an initial stage and the power of the Government to appoint an official in a higher caare by promqting him from a lower cadre. I am of the view that in the absence of rules framed by the President which provide for the manner in which an official can be promoted from a lower cadre to a higher cadre it is open to the Union Govt to fill up the post in the higher cadre by promotion in exercise of its executive power under Art. 73 of the Constn. In so far as the validity of promotion based on merit is concerned it cannot be said that the said method is violative of Arts 14 and 16 of the Constn. What Arts. 14 and 16 of the Constn guarantee is 'equality of treatment'. When the authority has considered the cases of all persons who are eligibly to be considered at the timq of selection it would not be open to those who are not selected to contend that they have been denied equality of opportunity in the matter of employment. In the instant case the petitioner's case was considered by the Departmental Committee and it was of the view that he was not so meritorious as these who were recommended. Filling up of posts in public service on the basis of selection is a well known method and its advantages so far as the members of the public are concerned are well known. In this connection it would be relevant to quqte Leonard D. White who has observed in his book ' Introduction to the Study of Public administration ' 4th Edn. Pp. 380 as follows : the principal object of a promotion system is to secure the best possible incumbents for the higher positions while maintaining the morale of the whole organisation. The main intqrest to be served is the public interest not the personal interest of members of the official group concerned. Thq public interest is best secured when reasonable opportunities "for promotion exist for all qualified employees when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur and when selection for promotion is made on the sole basis ol merit. Thq public interest is best secured when reasonable opportunities "for promotion exist for all qualified employees when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur and when selection for promotion is made on the sole basis ol merit. Fqr the merit system ought to apply as specifically in making promotions as in original recruitment. ( 26 ) EMPLOYEES often prefer the rule of seniority by which the eligible longest in servie is automatically awarded the promotion. Within limits seniority is entitled to consideration as onq criterion of selection. It tends to eliminate favourtism or the suspicion thereof and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility it is entitled to less and less weight. When seniority is made the sole determining factor at any level it is a dangerous guide. It does not follow that the employee longst in service in a particular grade is best suited for promotion to a higher grade; the very ppposite may be true. ( 27 ) THE Supreme Court had occasion to deal with similar contentions in Sant ram Sharma v. State of Rajasthan, AIR 1967 SC 1910 and it observed at page 1915 in para 9 as follows: We pass on to consider the next contention of Mr. N. C. Chatterjee that if the executive Govt is held to have power to make appointments and lay dawn conditions of service without making rules in that behalf under the proviso to Art. 309 there will be a violation Off Arts. 14 and 16 because the appointments would be arbitrary and capricious. In our view there is no substance in this contention of the] petitioner. If the State of Rajasthan had considered the case of the petitioner along with the other eligible candidates before appointments to the selection posts there would be no breach of the provisions of Arts. 14 and 16 of the constn because every one who was eligible in view of the conditions of servide and was entitled entitled to consideration was actually considered before promotion those selection posts were actually made. It was said by Mr. 14 and 16 of the constn because every one who was eligible in view of the conditions of servide and was entitled entitled to consideration was actually considered before promotion those selection posts were actually made. It was said by Mr. C. B. Agarwala on behalf of the respondents that an objective evaluation of the merit of the oncers is made each year and promotion is made on scrutiny of the record-sheets dealing with the competence efficiency and experience of the officers conperned. In the present case there is no specific allegation by the petitioner in the writ petition that his case was not considered along with respondents 3 and 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Addl Inspector general of Police in 1966. . . . . It is therefore not possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under Arts. 14 and 16 of the Constn in the present case. Mr. N. C. Chaterjee argued that the introduction of the idea of merit into the procedure of promotion brings in an element of personal evaluation and that personal evaluation opens the door to the abuses of nepotism and fayourtism and so there was a violation of the constitutional guarantee under Arts. 14 and 16 of the Constn. We are unable to accept this argument as well founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which Absolute objectivity can be ensured is for all promotions to be made entirely on grqunds of seniority. ( 28 ) THAT means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones; an official was nothing to win or lose provided he does not actually became so inefficient that disciplinary action has to be taken against him. As a system it is fair to every official except the best ones; an official was nothing to win or lose provided he does not actually became so inefficient that disciplinary action has to be taken against him. But though the system is fair to the officials concerned it is a heavy burden on the public and a great strain on the efficient handling of public business. The prqblem therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to prqtect the public interest in halving posts filled by the most able man. ( 29 ) IT has to be observed here that the Supreme Court quoted with apprqval the passage from ' Introduction to the Study of Public Administration' by leonard D. White extracted above. The next contention of Sri Iyengar was that there was denial of equality of opportunity under Arts. 14 and 16 of the Constn in view of the fact that the merit of the officials concerned was first assessed by departmental committee at the State level and another departmental committee at the union level. It was argued that every officer who is eligible to be considered for promotion to class I cadre was entitled to be a competitor for the post to be filled up by promotion in IA and AS cadre and therefore the consideration of cases of the officials by several departmental committees at the level of the State denied them equahity of opportunity. In support of the above contention reliance was placed on the decision of the Supreme Court in Ramachandra Shankar Deodhar v. State of Maharashtra, AIR. 1874 SC. 2s2. It is necessary to state briefly the facts of that case in order to determine whether the decision given by the Supreme Court in that case has any bearing on the present case or not. In that case the Supreme Court was concerned with a case in which the validity of the rules governing the promotion of officials in the cadre of Mamlatdars to the cadre of Deputy Collectors in the State of Maharashtra was in issue. The cadre of Mamlatdars was a division-wise cadre. The cadre of Deputy Collectors was a provincial cadre. According to the rules it was open to the state Govt to promote persons in the cadre of Mamlatdars to the cadre of deputy Collectors. The cadre of Mamlatdars was a division-wise cadre. The cadre of Deputy Collectors was a provincial cadre. According to the rules it was open to the state Govt to promote persons in the cadre of Mamlatdars to the cadre of deputy Collectors. In that connection the State Govt issued detailed instructions regarding the procedure to be followed in making promotions of Mamlatdars to the cadre of Deputy Collectors. According to those instructions a review committee constituted at the division level had to prepara a select list of Mamlatdars who were found fit for promotion as Deputy collectors. While preparing the said list a higher rank was to be assigned to a person whq possessed higher merit and the list had to be prepared on the basis of merit and not on the basis of seniority. It was further provided that when a vacancy arose in the post of a Deputy Collector in a division and it was likely to last for three months or more a Mamlatdar whose name was higher in the divisional select list and was not already officiating should be promoted. as an officiating Deputy collector in the vacant post. The State Government also directed that the seniority in the divisional select list was to be constantly under review until a person who was appointed as an officiating Deputy Collector was appointed as a Deputy Collector on a permanent basis. It is seen from the procedure referred to above that the confirmation of a Mamlatdar whose name had been included in the select list of Deputy Collectors as a Deputy collector was dependent upon the availability of a vacancy in the division concerned although all the Mamlatdars were considered as competitors to the vacancies in the cadre of Deputy Collectors which was a provincial cadre. The Supreme Court was of the view that the introduction of the system of promoting Mamlatdars who had been selected on the basis of merit and whose names had been included in the divisional slect list amounted to denial of equality of opportunity because unless a Mamlatdar was first appointed as an officiating Deputy Collector he was not eligible to be confirmed as a Deiputy Collector and that his right to be appointed as an officiating Deputy Collector was dependent upon the availability of a vacancy in a particular division. In that connection the Supreme Court observed as follows : Now it is clear that this procedure suffers from a serious infirmity in that it provides for promotions to the State cadre of Deputy collectors to be made on the basis of divisional select lists. That clearly amounts to denial of equality of opportunity to Mamlatdars in the state in the matter of promotion to the cadre of Deputy Collectors. If a Mamlatdar aspires to be promoted to the cadre of Deputy Collectors which is the next higher cadre of promotion for him he has to be promoted first as officiating Deputy Collector. It is only after he is promoted as officiating Deputy Collector that he can become eligible to be confirmed in the cadre of Deputy Collectors. But in order to be promoted as officiating Deputy Collector he has to wait until a vacancy occurs in the post of Deputy Collector in his division. Even if he is senior to a Mamlatdar in another division and more suitable he cannot be promoted to officiate in a vacancy which arises in the other division. His opportunity for promotion is limited to a vacancy in his own division. ( 30 ) THE consequence is that if a vacancy in the post of Deputy collector arises earlier in one division a Mamlatdar in the select list of that division would get promoted as officiating Dy. Collector earlier than a Mamlatdar in another division where a vacancy in the post of Deputy collector arises later and subject to the operation of the rule of deemed dates of continuous officiation that would! mean that the former would gain entry in the cadre of Deputy Collectors earlier than the latter even though the former may be junior and less suitable than the latter. The entry in the cadre of Deputy Collectors is thus made to depend not on the assessment of the relative merits of a Mamlatdar vis-a-vis the other Mamlatdars in the State but on the fortuitous circumstance as to when a vacancy in the post of Deputy Collector arises in the division to which the Mamlatdar belongs. This is clearly violative of the equal opportunity clause because it is wholly unrelated to the object and purpose of promotion which is to secure an efficient cadre of Deputy Collectors and in fact negates it. This is clearly violative of the equal opportunity clause because it is wholly unrelated to the object and purpose of promotion which is to secure an efficient cadre of Deputy Collectors and in fact negates it. It must be remembered that the cadre of Deputy Collectors is a State cadre and for promotion to such State cadre every Mamlatdar must have equal opportunity to be considered. Where promotion is made by selection on the basis of merit-cum-seniority every Mamlatdar should be able to enter the lists; he should have equaj opportunity with others for being considered for promotion. There must be one common door for entry into the cadre of Deputy Collectors through which every Mamlatdar should be equally entitled to enter provided he is selected on the application of the principle of merit-cum-seniority. There cannot be six doors of entry one door availably exclusively for the Mamlatdars of each division. That is bound to create inequality of oportunity in the matter of of promotion. ( 31 ) I do not think that the facts of the present case are similar to the facts in deodhat's case (12) even though recommendations of officials fit for promotion are made by the departmental committees at the State level. Under the procedure that is beting followed it is the duty of the departmental committee at the Union level the Union Public Service and the Central Govt to consider the; cases of all the persons who are recommended by the departmental committee at the State level and to prepare a common list from out of which the appointments would be made to the promotional quota of the IA and AS cadre. The entry of an official working in an area under the charge of an Accountantant General to class I cadre is not dependent upon the availability of a vacancy in class I cadre in that charge;. All the persons who are found fit for being promoted are entitled to be considered for promotion to the class I cadre. Hence it cannot be said that merely because the assessment of the merit of officials is done by seyeral departmental committees at the State level there has been denial of equality of opportunity in the matter of promotion The petitioner cannot therefore derive any assistance from Deodhar's case (12 ). ( 32 ) IT was next argued that in the absence of any adverse! ( 32 ) IT was next argued that in the absence of any adverse! remark in the case of the petitioner the departmental committee committed an error in not considering him as a fit person for being appointed as an official in the class I cadre. Absence of adverse remarks against an officer does not mean that he is entitled to be appointed to a post which has to be made by selection. In Mir Ghulam Hussan v. Union of India, AIR. 1973 SC. 1138. the Supreme Court while considering a similar contention has observed as follows :" In para 26 of the petition there is an averment that there was no adverse remark against the petitioners. The suggestion obviously sought to be made out at that stage was this that since there was nothing adverse against them the petitioners were entitled to be selected. This claim is of course completely misconceived for the simple reason that promotion is not made on the basis of absence of complaint but on the basis of positive merit. Absence of adverse remarks is nor criterion of the quality of an officer. " ( 33 ) THE next contention relates to the question whether it is obligatory on the part of the appointing authority to give reasons in support of its decision rejecting the claim of an official for being promoted to a higher office and to communicate them to the official- It is urged on behalf of the petitioner that m the absence of reasons recorded by the departmental committee and communicated to the official concerned it should be assumed that the recommendations made by the committee were in violation of Arts. 14 and 16 of the Constn. In support of this contention reliance was placed on certain observations made by Beg J. m Union of India v. M. L. Capoor, AIR. 1974 SC. 87. 14 and 16 of the Constn. In support of this contention reliance was placed on certain observations made by Beg J. m Union of India v. M. L. Capoor, AIR. 1974 SC. 87. at para 26 which are as follows : therefore speaking entirely for myself on this question I was inclined to hold that although the process of approval by the Union public Service Commission is not such as to be characterised as quasi- judicial and that supersessions in the course of preparations and finalisationa of select lists could not be strictly and legally held to be penal so as to attract an application of Art. 311 of the Constn a minimal requirement of just and fair treatment in such a situation would be to inform the officer to be superseded of reasons recorded for his proposed supersession so as to enable him to make such representations against the proposal before its approval by the Union Public service Commission as he may desire to make. But as I have observed above I am doubtful whether on authorities as they stand today, such an expansion of the scope of natural justice is justified. After having had the benefit of the views expressed by my learned Brother mathew for which I have the greatest respect I do not think that i could embark singly in the cases before us upon what may appear to be a new extension of concepts of justice fair play and reason in the realm of administrative law particularly as "the cases before us can be decided on the next question on which our views coincide. " the answer to the contention raised on behalf of the petitioner is to be found in the passage extracted above. Although Beg J. was of the view that it was desirable that reasons -should be given before the claim of an official for promotion is over-looked the Supreme Court did not decide the case on the basis of the 'personal' view of Beg J. As can be seen from the separate and concurring judgment of Mathew J. the appeal before the supreme Court was allowed on the true interpretation of Regln. 5 (5) of the indian Administrative Service Indian Police Service (Appointment by promotion) Regulations 1955 which expressly provided that if in the process of selection review or revision it was proposed to supersede any member of the State Civil Service the committee should record! its reasons for the proposed supersession. Dealing with the observations of Beg J. extracted above Mathew J. observed in the last paragraph of the judgment that on a balance of all the relevant factors it was not expedient to extend the horizon of natural justice involved in the audi alterant parent rule to the twilight zone of mere expectations however great they might be. I do not therefore find any merit in the above submission made on behalf of the petitioner. ( 34 ) IT was lastly argued by Sri Venkataranga Iyengar that under the procedure which was being followed the decision of the departmental committee at the State level would be final for all intents and purposes in so fae as officials whose cases were not recommended for consideration by the departmental committee at the Union level the Public Service commission and the Central Government and in the absence of any opportunity to the official who was adversely affected by the decision of the departmental committee at the State level to make representation to higher authorities to review his case it would amount to delegation of the power of the Central Govt which was the appointing authority to the departmental committee which according to the petitioner was non-delegable. It is unnecessary to express any opinion on this question in view of a memorandum produced by the Addl Solicitor General of India which reads as follows :" The Addl Solicitor General of India states on behalf of the 3rd respondest: the list of recommendations prepared by the Departmental promotion Committee (at the State level) will be forwarded to the Comptroller and Auditor General along with the confidential reports of the rest of the officers whose names have been considered will be made available to the Departmental Promotion Committee of the Union public Service Commission (at the Centre) before it meets, together with the remarks of the Departmental Promotion Committee (at the state level)". ( 35 ) THE above menes has been filed by the Addl Solicitor General of India without conceding that the officers concerned have a right to ask that their confidential reports also should be sent up to the departmental promotional committee at the Centre for consideration. In view of the above memo I feel that the grievance of the petitioner on this account no longer survives. When the confidential reports are made available to the Departmental Promotional Committee at the Centre it is expected that the departmental committee at the Centre will look into them and take appropriate decision. In the circumstances I am of the view that there is no need to express any opinion on the contention which was raised on behalf of the petitioner at a late stage in the course of a rejoinder that a certain circular issued by the Home Ministry regarding the method of selection should prevail. No other contention is urged. The petition fails and it is dismissed. In the circumstances there will be no order as to costs. --- *** --- .