S. B. MAJMUDAR, J. ( 1 ) IN this petition under Article 226 of the Constitution the petitioner who belongs to a scheduled tribe has challenged the action of the Departmental Promotion Committee hereinafter referred to as the DPC) finding the petitioner to be not yet fit for promotion in January 1983 when it deliberated his case for promotion to the higher post in Grade I which is designated as Joint Chief Controller of Imports and Exports class I (Jt C. C. for short) from his substantive post of Deputy Chief Controller of Imports and Exports which is in Grade II. (Dy. C. C.) ( 2 ) THIS petition has a little chequered history and hence it is necessary to note at the outset the relevant facts leading to this petition and its progress after its institution in this court. The petitioner is M. A. (Economics) and belongs to a scheduled tribe. The petitioner was selected and appointed as Controller of Imports and Exports Class I in the office of the Chief Controller of Imports and Exports Ministry of Commerce Government of India New Delhi in the year 1962 as a direct recruit. On 10-9-1967 he was confirmed in the said post in a substantive capacity in the organization of the Chief Controller with effect from 10-9-1967- Thereafter on the recommendation of the DPC the petitioner alongwith 18 other officers was further promoted to the higher post of Deputy Chief Controller of Imports and Exports. He was promoted with effect from 1-2-1970. After completion of the requisite two years probation period satisfactorily by a letter dated 21 of the Government of India the petitioner was confirmed on the promotion post of Deputy Chief Controller. The petitioner occupied the said promotional post thereafter continuously. ( 3 ) IN the meanwhile on 6-8-1977 Central Trade Service (Group A) was constituted under the Central Trade Service (Group A) Rules 1977 framed by the President of India of Art- 309 of the Constitution (herein- after referred to as the service rules ). The said rules were published in the Govt. of India Gazette on 6-8-1977- As per rule 3 of the Service rules the Central Trade Service (Group A) was to comprise of persons appointed to the service under rules 6 7 and 8. As per rule 4 there were to be 3 grades in the service viz. Grades I II and III. of India Gazette on 6-8-1977- As per rule 3 of the Service rules the Central Trade Service (Group A) was to comprise of persons appointed to the service under rules 6 7 and 8. As per rule 4 there were to be 3 grades in the service viz. Grades I II and III. The posts included in the various grades of service their classification and pay scales were to be as specified in schedule I. As per the said Schedule post of Joint Chief Controller of Imports and Exports was in grade I while the post of Deputy Chief Controller of Imports and Exports was in grade II. As per rule 6 of the service rules the Union Public Service Commission was enjoined to constitute a selection committee with the Chairman or a Member of the Commission as President and not more than three representatives of the Ministry of Commerce of which one shall be from the Organization of the Chief Controller of imports and Exports to determine the suitability of departmental candidates for appointment to the different grades and to prepare an order of preference for each grade for the initial constitution of the service and submit a report. The petitioner being a departmental candidate was duly absorbed in the aforesaid service and was appointed to grade II post of Deputy Chief Controller which he was earlier holding substantively from 21-8-1972 after completion of his probationary period. The President of India appointed the petitioner as Deputy Chief Controller with effect from Nov. 28 1979 in grade II of the service as constituted under the service rules. By a notification dated 1-12-1979 published in the Govt. of India Gazette on 1/12/1979 looking to the service record of the petitioner and his seniority he was placed at Sr. No. 2 in the list of grade II officers and the salary of the petitioner as Dy. Chief Controller was fixed at Rs. 1100-50-1600. Rule 7 of the service rules dealt with the question regarding special provision pertaining to certain departmental candidates: while rule 8 dealt with future maintenance of service. It is now time to refer to rule 8 which is relevant for the decision of the present petition. Chief Controller was fixed at Rs. 1100-50-1600. Rule 7 of the service rules dealt with the question regarding special provision pertaining to certain departmental candidates: while rule 8 dealt with future maintenance of service. It is now time to refer to rule 8 which is relevant for the decision of the present petition. The said rule is therefore reproduced in extenso as under:"8 (1) After the initial constitution of the service has been completed by the appointment of departmental candidates or otherwise vacancies shall be filled in the manner as hereafter provided: (A) Grade I. Not more than 400/0 of the vacancies in grade I shall be filled by transfer or deputation of officers from the I. A. S. and Central Services Group A eligible for appointment as Deputy Secretary to the Government of India (Period of deputation shall ordinarily not exceed 4 years): and the remaining vacancies in Grade I shall be filled by selection on merit from the members of Grade II who have completed at least 5 years service in the grade rendered after appointment thereto on a regular basis on the recommendations of a departmental promotion committee. Provided that for a period of five years from the date of the commencement of the service service rendered by a tirade I officer as erstwhile regular Deputy Chief Controller in the organization of Chief Controller of imports and Exports shall be counted as qualifying service for purpose of eligibility for promotion from Grade II to Grade 1" ( 4 ) AS the petitioner was substantively working in Grade It in the said service the question of his future promotion to the Grade I post of Joint Chief Controller naturally assumed importance for the petitioner and departmental candidates equally situated like him. As per the mandate of rule 8 for Grade I post of Joint Chief Controller there was 40% reservation of the posts to be filled in by transfer or deputation of officers from the I. A. S. and Central Services Group A and other categories but so far as remaining 60% vacancies were concerned departmental candidates like the petitioner and others who were working in Grade II posts of Deputy Chief Controller became eligible to be considered for promotion by selection on merits. It-is not in dispute that the petitioner was eligible to be considered for promotion in available vacancy in Grade I as he had completed five years service in Grade II after appointment on regular basis on account of the fact that as per proviso to rule 8 (1) earlier service rendered by him as Deputy Chief Controller before the constitution of the Central Trade Service as per the service rules had to be considered for the purpose of computing five years of service for earning eligibility for promotion to the post of Joint Chief Controller. Thus admittedly the petitioner became entitled to be considered for higher promotional post in Grade I. Before the actual question of petitioners eligibility for being selected for promotion to the higher post in grade I came up for consideration he was promoted on an ad hoc basis to officiate as Joint Chief Controller in a grade I of the Central Trade Service. The said ad hoc promotion was given to the petitioner with effect from 28- 1979. The order provisionally promoting petitioner to Grade I post of Joint Chief Controller is at annexure F to the petition. The order is dated 19 and it recites that on approval of the Department of Commerce the petitioner is appointed to officiate as Joint Chief Controller of Imports and Exports purely on ad hoc basis for the present or till regular arrangement is made whichever is earlier. The petitioner assumed charge of the said higher post with effect from 28-11-1979 and is working all throughout till today on the said higher post. After the aforesaid ad hoc promotion of the petitioner was effected the question arose before the DPC as to whether the petitioner and other concerned officers were required to be regularly promoted to the said higher post as per rule 8. In the entire set up of the Central Trade Service there were in all 14 posts in grade I designated as posts of Joint Chief Controller. As per rule 8 (1) (A) out of these 14 posts in grade I six had to be kept apart for being filled in by incumbents drawn from I. A. S. and other categories. However remaining 8 posts fell for being filled in by promotion of departmental candidates substantially belonging to grade II viz. being Deputy Chief Controllers like the petitioner. However remaining 8 posts fell for being filled in by promotion of departmental candidates substantially belonging to grade II viz. being Deputy Chief Controllers like the petitioner. Out of these 8 posts which were available for being filled up by departmental promotees as per rule 8 (1) (A) two posts were held by regularly appointed Joint Chief Controllers and consequently six posts were available to be substantively filled in by departmental promotees on regular promotion basis. However till actual regular promotions were affected after due deliberations these six posts were filled in on ad hoc basis by appointing departmental candidates and that is how the petitioner came to be given ad hoc promotion to the said post from 28-11-1979 as seen above. ( 5 ) WHEN the question arose about regularising the appointments of such ad hoc promotees like the petitioner in grade I posts of Joint Chief Controller the departmental promotion committee was constituted by respondent No. 1 in the Ministry of Home Affairs Department of Personel and Administrative Reforms vide memorandum No. 22011/3/ 76 dated 24-12-1980. The departmental promotion committee (DPC) was required to prepare the panel relating to the concerned officers who were found eligible to be promoted to the selection posts. This DPC held its sittings in the office of the Union Public Service Commission New Delhi in January 1983 when the petitioners case alongwith cases of other departmental candidates like him came to be considered for being promoted to the higher posts of Joint Chief Controller in grade. This DPC held its sittings in the office of the Union Public Service Commission New Delhi in January 1983 when the petitioners case alongwith cases of other departmental candidates like him came to be considered for being promoted to the higher posts of Joint Chief Controller in grade. The petitioner apprehended that the DPC which met as stated above had not recommended his case for being substantively promoted to the higher post and that he was likely to face reversion from the officiating post of Joint Chief Controller to the post of Deputy Chief Controller and that is how the petitioner filed the present petition on 14-2-1983 seeking a writ of mandamus or any other appropriate writ order or direction directing the respondents i. e. Union of India respondent No. 1 herein and respondent No. 2 the officer occupying the highest post in the Central Trade Service being that of Chief Controller New Delhi not to revert the petitioner from the post of Joint Chief Controller to that of Deputy Chief controller and pending the hearing and final disposal of the petition it was prayed that the order of reversion of the petitioner might be stayed. . . . . . . . . . . [ After stating the facts His Lordship further observed. ] ( 6 ) MR. Desai for the petitioner has raised the following contentions in support of the petition: (1) As the petitioner is admittedly a scheduled tribe candidate the respondents and especially the DPC which was entrusted with the task of finding out suitable candidates for being selected for promotion to higher grade I post of Joint Chief Controller had to follow the binding guidelines and instructions issued by the Central Government as embodied in Brochure on Reservation for Scheduled Castes and scheduled Tribes in Services issued by the Government of India in the department of Personnel and Administrative Reforms Ministry of Home Affairs especially para 12. 2 as found in Chapter 12 of the said Brochure. As the said guidelines submitted Mr. Desai were not kept in view by the DPC when it deliberated on the question of Selecting suitable candidates for promotion to the post in question the entire procedure adopted by the DPC and its final conclusion excluding the petitioners name from the panel of selected candidates were vitiated in law. (2) In the alternative Mr. Desai were not kept in view by the DPC when it deliberated on the question of Selecting suitable candidates for promotion to the post in question the entire procedure adopted by the DPC and its final conclusion excluding the petitioners name from the panel of selected candidates were vitiated in law. (2) In the alternative Mr. Desai submitted that even assuming that rule 8 (1a) of the Service rules held the field and selection by promotion to grade I was purely on merits as admittedly the DPC had graded the petitioner as not yet fit and not unfit for promotion the petitioner was entitled to the issuance of proper direction to the respondents to include the petitioners name in the panel of selected candidates even according to the grading of the petitioner as arrived at by the DPC. (3) The proceedings of the DPC of 11-1-1983 insofar as the petitioners name was excluded from the panel of selected candidates were vitiated also on the ground that the DPC had considered amongst others confidential report of the petitioner for the year 1979 which according to the petitioner might have contained an adverse remark which however was not communicated to the petitioner at any time. Consequently reliance placed by the DPC-on such an uncommunicated adverse remark had vitiated the entire exercise of selection by the DPC. (4) The DPC proceedings were equally vitiated on account of a further infirmity that the said committee did not consider the confidential reports of the petitioner for the period of time during which he had acted as Joint Chief Controller though on an ad hoc basis from 27-11-1979. As a sequitor to the aforesaid contention Mr. Desai submitted that as the DPC had ignored the confidential reports which were favourable to the petitioner while arriving at its decision against the petitioner the conclusions reached by the DPC were vitiated in law being lopsided and arbitrary. (5) The proceedings of DPC were also vitiated in law on account of the further fact the DPC before deciding to select proper candidates for promotion to the higher post in Grade I had not laid down any criteria or norms nor were such norms announced before hand and hence these proceedings were totally arbitrary and vitiated in law. (5) The proceedings of DPC were also vitiated in law on account of the further fact the DPC before deciding to select proper candidates for promotion to the higher post in Grade I had not laid down any criteria or norms nor were such norms announced before hand and hence these proceedings were totally arbitrary and vitiated in law. (6) The DPC had in any case committed breach of the guidelines issued by the Central Government in respect of preparation of panels for promoting suitable candidates qua vacancies for each year. ( 7 ) POINT No. 1:10 So far as the first contention is concerned it must be noted that the relevant stautory rule laying down criteria for appointment to grade I post in the Central Trade Service is rule 8 (1) of the service rules. The said rule has been reproduced earlier. To recapitulate at this stage it may be stated that before any departmental candidate substantively working in grade II can be promoted to grade I he must complete five years of service in grade II and he must be selected on merits for promotion to the said higher post. The respondents in their affidavit-in-reply dated 3-3-1983 at page 45 of the paper book have pointed out the procedure followed by the DPC for selecting departmental candidate for promotion to the selection post in grade I on 11-1-1983. It is set out as under:"the departmental promotion committee on examination of C. C. rolls of the persons coming within the zone of consideration will grade the individuals as outstanding very good good and unfit. The persons who are declared `outstanding will supersede the others but the inter se seniority of persons who are graded outstanding will be decided by their seniority. Similarly persons who are graded as `very good will rank next to those persons who are graded as `outstanding. The persons graded as `good will rank next to the persons who are graded as very good. It is submitted that in such grading the petitioner was graded as `unfit. " ( 8 ) IT may be noted that even though the aforesaid averments were made on oath in the affidavit-in-reply filed by Mr. Gopalan Nair Deputy Chief Controller he filed a further affidavit-in-reply on 4 wherein it has been stated as under:"i have filed one affidavit-in-reply dated 3rd of March 1983. " ( 8 ) IT may be noted that even though the aforesaid averments were made on oath in the affidavit-in-reply filed by Mr. Gopalan Nair Deputy Chief Controller he filed a further affidavit-in-reply on 4 wherein it has been stated as under:"i have filed one affidavit-in-reply dated 3rd of March 1983. In paragraph 10 of the said affidavit-in reply on typed page 12 and running page 45 I have referred to the grading given by the departmental promotion committee and therein I have referred to as grade `unfit. If fact the said grading is not of `unfit but it is not yet fit. In the last sentence of that paragraph I have stated that in such grading the petitioner was graded as `unfit. I say that it was through mistake and in fact the said sentence should read as under: "it is submitted that in such grading the petitioner was graded as not yet fit". ( 9 ) SO far as the first contention of Mr. Desai is concerned it was tried to be submitted that as the petitioner was admittedly belonging to a scheduled tribe the DPC was not required to judge his suitability for promotion by adopting rigorous test of rule 8 but in his case the concession given by the Central Government in case of scheduled tribe and scheduled caste candidates for such selection as found in para 12. 2 of Ch-12 of the Brochure referred to earlier had to be kept in view. Before I advert to the relevant provisions of the brochure it is necessary to note one more rule in the service rules. That rule is rule No 13. It reads as under:"nothing in these rules shall affect reservations and other concessions required to be provided for scheduled castes and scheduled tribes and other special categories of persons in accordance with the orders issued by the Government from time to time". ( 10 ) IT is therefore obvious that if the Central Government decides to give any concession to any scheduled tribe or scheduled caste candidates in connection with rigorous criteria laid down by any other rules the said reservation and concessions must override the general criteria laid down by the other rules. Rule 8 is one such general rule. ( 10 ) IT is therefore obvious that if the Central Government decides to give any concession to any scheduled tribe or scheduled caste candidates in connection with rigorous criteria laid down by any other rules the said reservation and concessions must override the general criteria laid down by the other rules. Rule 8 is one such general rule. It no doubt enjoins that for departmental candidates who aspire to be selected for promotion from grade II to Grade I merit is the criterion for such selection. It therefore lays down a positive test viz. if the concerned candidate is found to be fit for promotion positively then he can be impanelled on the panel of selected candidates. But if he is sot found fit for promotion on any relevant ground he cannot aspire to enter the panel. This strict criterion is laid down by rule 8 (1) (A) can be diluted and whittled down by any suitable exercise of statutory power as permitted by rule 13 by the donee of the power viz the Government as defined by rule 2 (e ). The donee of this statutory power viz. the Central Government has granted certain concessions to scheduled caste and scheduled tribe candidates who aspire to be promoted to higher posts in the Central Government service. The brochure referred to above contains Chapter 12 which is captioned as under :- Promotion reservation and concessions Para 12. 1 of the brochure is not relevant for our purpose as it deals with departmental competitive examinations which are admittedly out of picture in the present controversy. We are squarely governed by para 12. 2 which deals with promotion by selection within group A (class I ). For effecting promotion to such higher post in group A certain concessions are given by the Central Government to scheduled tribe and scheduled caste candidates. Para 12. 2 deserves to be reproduced in extenso. It reads as under : ( 11 ) 12. 2 Promotion by selection method. 12. 2 Promotions by selection within Group A (class I ). ( 12 ) IN promotions by selection to posts within Group A (class 1) which carry an ultimate salary of Rs. 2000. 00 per month or less. (Rs. 2 deserves to be reproduced in extenso. It reads as under : ( 11 ) 12. 2 Promotion by selection method. 12. 2 Promotions by selection within Group A (class I ). ( 12 ) IN promotions by selection to posts within Group A (class 1) which carry an ultimate salary of Rs. 2000. 00 per month or less. (Rs. 2250/- per month or less in the revised scale) there is no reservation but the scheduled castes/scheduled tribes officers who are senior enough in the one of consideration for promotion so as to be within the number of vacancies for which the select list has to be drawn up would be included in that list provided they are not considered unfit for promotion. Their position in the select list would however be the same as assigned to there by the departmental promotion committee on the basis of their record of service. They would not be given for this purpose one grading higher than the grading otherwise assignable to them on the basis of their record of service.- (Emphasis supplied)" ( 13 ) IN order to improve the chances of scheduled caste and scheduled tribes officers for selection to the higher categories of posts in group A (Class I) (I) scheduled cates/scheduled tribes officers in group A (class I) services/posts should be provided with more opportunities for institutional training and for attending seminars/symposia conferences. Advantage could also be taken of the training facilities available at the Lal Bahadur Shastri National Academy of Administration Mussoorie: National Police Academy; Hyderabad; Indian Institute of Public Administration New Delhi; the Administrative Staff College Hyderabad etc. and (ii) It would be the special responsibility of the immediate superior officers of the scheduled castes/scheduled tribes officers in class I to give advice and guidance to the latter to improve the quality of their work". ( 14 ) IT is not in dispute between the parties that the instructions contained in para 12. 2 would apply to the process of selection to grade A (class 1) posts. Though initially Mr. S. D. Shah tried to submit that such departmental instructions which are administrative in nature cannot whittle down the statutory vigour of rule 8 when he appreciated the overriding effect of rule 13 he fairly did not press this contention. 2 would apply to the process of selection to grade A (class 1) posts. Though initially Mr. S. D. Shah tried to submit that such departmental instructions which are administrative in nature cannot whittle down the statutory vigour of rule 8 when he appreciated the overriding effect of rule 13 he fairly did not press this contention. Consequently it must be treated to be an uncontroverted position on the record of this case that para 12. 2 (a) does apply to the facts of the present case. Once this aspect of the matter is clear it is obvious that the directions contained in para 12. 2 will have to be read alongwith rule 8 of the rules via rule 13 of the rules and the nature of the concessions given in para 12. 2 (a) must necessarily be treated to have been projected to dilute the criterion for selection as laid down by rule 8 (1) (A) so far as scheduled tribe and scheduled caste candidates are concerned. Moment that conclusion is reached a clear cut departure by way of concession tried to be given by para 12. 2 to scheduled caste and scheduled tribe candidates competing in the process for being selected for promotion to grade I from grade II becomes obvious. For other caste departmental candidates criterion for selection for promotion is merit. It is therefore obvious that only meritorious candidates can get in the panel. In short it is as seen earlier criterion of positive fitness laying down the positive test to be applied in the process of selection by the concerned DPC. However once we turn to para 12. 2 (a) the concession which is visible is that if a departmental candidate in grade II is a scheduled caste or scheduled tribe officer even though there is no reservation in the higher cadre for him if he is senior enough in the zone of consideration for promotion so as to be within the number of vacancies for which the select list has to be drawn up he would be included in the list of selected candidates provided he is not considered unfit for promotion. It becomes at once clear that criterion for deciding whether the candidate is unfit for promotion or not the test to be applied is negative test meaning thereby if he is not found to be unfit for promotion so that he can be weeded out he has to be empanelled as provided by para 12. It must be noted that so far as the facts of the present case are concerned it is the stand of the respondents as found in the affidavit-in-reply at page 45 of the paper book read with further affidavit of the deponent Mr. Gopalan Nair dated 4-3-1983 that the petitioner was graded as `not yet fit and was not graded as `unfit by the DPC. Still however the petitioners name was not included in the panel. It therefore becomes obvious that the DPC had adopted the positive test as laid down by rule 8 (1) (A) while it considered the case of the petitioner amongst other candidates and necessarily it did not consider the concessional criterion laid down by the Central Government in case of scheduled tribe and scheduled caste candidates as enjoined by para 12. 2 by adopting negative test. The difference between the terms `not yet fit and `unfit for promotion is now very well established does not require any serious debate or discussion. Similarly difference between criterion of merit-cum-seniority laying down positive test of selection and the criterion of seniority-cum-merit laying down negative test is also well settled by catena of decisions of this Court ant the Supreme Court. I may only refer to few of them. In the case of Mohd. Usman and Others v. The State of Andhra Pradesh A. I. R. 1971 S. C. 1801 Hegde J. speaking for the Supreme Court considered the Andhra Pradesh Registration Subordinate Service Special Rules especially rule 5 thereof which provided for recruitment to grade II sub-Registrars from among ministerial officials of Registration and Stamp Department. In that case promotions were effected by adopting criterion of senioritycum-merit the seniors among the clerks were selected subject to suitability. Those persons who were entitled to be given preference under the rules were considered separately and recruited at the first instance. In that case the Registrar thought that the best basis for recruitment was to prepare a list of all the clerks U. D. Cs. as well as L. D. Cs. Those persons who were entitled to be given preference under the rules were considered separately and recruited at the first instance. In that case the Registrar thought that the best basis for recruitment was to prepare a list of all the clerks U. D. Cs. as well as L. D. Cs. arranging the names in the order of seniority as L. D. Cs. and thereafter consider each name and reject the unfit. The Supreme Court noted that as the rules did not prescribe that the recruitment should be made on the basis of merit and merit alone the procedure of recruitment adopted by the Registrar on the basis of seniority-cum-merit by rejecting only unfit amongst all for being promoted was found to be quite justified. Thus in a case where promotion is to be effected by adopting principle of seniority-cum-merit it is a negative test of weeding out unfit which has got to be applied and if the concerned senior is not positively found unfit for selection by promotion he has to be given his due chance of being selected for promotion. I may now refer to a decision of learned Single Judge of this Court (A. M. Ahmadi J.) in the case of Sudhaben v. Regional Passport Officer Ahmedabad and Another reported in 24 (2) G. L. R. 1297 ahmadi J. had an occasion to consider in that case rules 6 (b) and 9 (2) (i) of the Central Passport and Emigration Organization (Recruitment) and (Promotion to class III posts) Maintenance Rules 1968 As per rule 6 (B) (a) (ii) upper division clerks posts had to be filled in order of preference amongst others by promoting officers of grade VII who had completed five years of service in that grade on seniority-cum fitness basis. The correct connotation of the criterion seniority-cumfitness was considered by Ahmadi J. in the light of the decision of the Supreme Court in the case of State of Mysore v. Syed Mahmood A. I. R 1968 S. C. 1113 and in the case of State of Mysore v. C. R. Seshadri A. I. R. 1974 S. C. 460. The correct connotation of the criterion seniority-cumfitness was considered by Ahmadi J. in the light of the decision of the Supreme Court in the case of State of Mysore v. Syed Mahmood A. I. R 1968 S. C. 1113 and in the case of State of Mysore v. C. R. Seshadri A. I. R. 1974 S. C. 460. Ahmadi J. also noted two earlier decisions of B. K. Mehta J. and observed as follows in connection with preparation of select list of candidates on the basis of seniority-cum-fitness adopting the ratio of decision of B. K. Mehta J. in Special Civil Application No. 317 of 1980:"while dealing with the criterion of seniority-cum-merit the concerned authorities have to consider whether the senior is positively unfit for being promoted; otherwise the factor of seniority must have an overriding consideration In other words the authorities have to come to the conclusion that the employee is positively unfit to be promoted to the next higher post notwithstanding his seniority". ( 15 ) THE learned judge thereafter noted the stand of the respondents in the affidavit-in-reply and observed that it was the case of the respondents that the concerned petitioners before him were not promoted because they were not found fit for promotion. In view of the aforesaid stand taken by the respondents on affidavit it was held by Ahmadi J. that the criterion adopted for promotion of the concerned candidates in the case before him was to find out who amongst the competing candidates were fit for promotion and not to weed out those who were unfit for promotion. In other words instead of applying the negative test the committee appeared to have applied the positive test. It was therefore clear that the departmental promotion committee applied the wrong test in deciding the question of selection of candidates for promotion to the next higher post and therefore the select list prepared by the committee on application of an erroneous test could not be sustained It is obvious therefore that this Court in Sudhabens case (supra) has clearly ruled that when criterion of selection for promotion is seniority cum-merit negative test has to be applied by the DPC and the afford has to be made whether the concerned candidate is unfit for promotion. If that conclusion is not reached such a candidate who is otherwise senior cannot be weeded out from the arena of selection. If that conclusion is not reached such a candidate who is otherwise senior cannot be weeded out from the arena of selection. It is also ruled in the aforesaid decision by Ahmadi J. that not fit for promotion is not equivalent to `unfit for promotion. Earlier grading would imply a positive test while the latter one would imply a negative test. ( 16 ) IN the case of D. B. Shah v. State and Another 24 G. L. R. 319 B. K. Mehta J. has taken the same view in Special Civil Application No. 995 of 1977. The following pertinent observations made by B. K. Mehta J. relying on the decisions of the Supreme Court in A. I. R. 1968 113 and A. I. R. 1974 S. C. 460 in connection with criterion for selection for promotion by adopting the principle of seniority-cum-fitness deserve to be extracted as under :"the connotation of the principles of seniority-cum-fitness is well recognised. It is settled legal position that when appointment to a post or service is by promotion based on the principle of seniority-cum-fitness there is no question of comparing or assessing the performance of a candidate competing for the post with the other candidates of his cadre. The question is to be examined with respect to each of the candidates concerned by finding out whether he is positively unfit for the promotion and it is passing over in favour of his junior candidate. The term seniority-cum-merit has settled connotation and it is that the ease of each officer is to be considered and rejected if found unfit. The distinction between criterion for promotion on seniority-cum-merit basis and the criterion for promotion on merit-cum-seniority basis is well known. The gist of the test of seniority -cum-merit is that inspite of seniority of an officer a junior could be promoted if the officer concerned was unfit to hold the post of promotion. Where the promotion is based on seniority-cum-merit a particular officer cannot claim promotion as a matter of right by virtue of seniority alone if he was found unfit to discharge the duties of higher post and in that case he may be superseded and a junior officer can be promoted. The question of comparative merit as per the settled legal position would arise if the length of service was equal or the outstanding junior was available for promotion. The question of comparative merit as per the settled legal position would arise if the length of service was equal or the outstanding junior was available for promotion. Otherwise seniority is a vital factor which could not be disregarded. It is only unfitness which would enable the authority to disregard seniority otherwise the test of comparative merit may be applied only when the length of service was equal or outstanding junior was available". ( 17 ) SAME view is also reiterated by R. C. Mankad J. in the decision in the case reported in 21 Gujarat Law Times 118 I respectfully concur with the reasoning adopted by the learned judges in the aforesaid decisions of this Court. In fact in the light of the settled legal position emanating from the Supreme Court decisions referred to above there can be no escape from the aforesaid conclusions reached in those decisions. ( 18 ) AS noted earlier the scheme of rule 8 (1) (. A) laying down criterion of merit meaning thereby merit-cum-seniority for promotion of departmental candidates from grade II to grade I is departed from to the extent to which scheduled caste and scheduled tribe candidates have to be considered for such promotion in view of the express language of para 12. 2 of the Chapter 12. Scheme of concession as enumerated in para 12. 2 is a limited scheme. It does not provide for any reservation of posts in grade I for scheduled tribe and scheduled caste candidates. But it certainly whittles down the rigour of the criterion for promotion as laid down by rule 8 which may he applicable to other caste candidates. So far as scheduled caste and scheduled tribe candidates are concerned if they are senior they can be kept out of the panel only if they are found unfit for promotion. It is obvious that criterion for promoting such scheduled tribe and scheduled caste candidates is a criterion involving negative test. If such scheduled tribe and scheduled caste candidates are found to be positively unfit for promotion they are to be weeded out otherwise on the mandate of para 12. 2 they have got to be empanelled. However as enjoined by the later part of para 12. If such scheduled tribe and scheduled caste candidates are found to be positively unfit for promotion they are to be weeded out otherwise on the mandate of para 12. 2 they have got to be empanelled. However as enjoined by the later part of para 12. 2 their position in the select list would be the same as assigned to them by the DPC on the basis of the record of their service and they would not be given for this purpose one grading higher than the grading otherwise assignable to them on the basis of their record of service. Thus it is a limited concession given to the scheduled tribe and scheduled caste candidates and it guarantees entry on the panel to such candidates who are not found unfit. ( 19 ) MR. Shah for the respondents however submitted that all that para 12. 2 has sought to do is to bring in less meritorious candidates as compared to other caste candidates who might be more meritorious and who would otherwise elbow out scheduled tribe and scheduled caste candidates from. But all the same DPC must come to the conclusion that they are otherwise fit for promotion. Mr. Shah also submitted that the guidelines found in para 12. 2 are not mandatory in character but they are directory and in any case they do not lay down anything which is inconsistent with the statutory rule. Mr. Shah also submitted that employment of words not considered unfit for promotion in para 12. 2 means the same thing as not fit for promotion as decided by the DPC. In my view it is not possible to accept the aforesaid interpretation of the words employed in para 12. 2 by the Central Government while granting concession to scheduled tribe and scheduled caste candidates. The reasons are obvious. Rule 8 which is applicable to all general cases of other caste candidates definitely lays down criterion of merit. Before a candidate is said to be meritorious he must be found to be positively fit for promotion and he can be elbowed out by more meritorious candidates. Process of comparison would naturally get involved in such an exercise. However when we come to para 12. 2 criterion for scheduled tribe and scheduled caste candidates for being eligible is not unfit. Process of comparison would naturally get involved in such an exercise. However when we come to para 12. 2 criterion for scheduled tribe and scheduled caste candidates for being eligible is not unfit. It is enjoined upon the DPC or the concerned appropriate authority that unless a given candidate of scheduled tribe or scheduled caste is found to be unfit for promotion he cannot be weeded out and cannot be refused entry in the panel of selection. It is impossible to agree with the submission of Mr. Shah for the respondent that the term `unit for promotion has the same connotation as not fit for promotion or `not yet fit for promotion. the said interpretation runs counter to the settled legal position as seen from the various decided cases of this court and the Supreme Court to some of which I have made a reference earlier. Even otherwise unfit for promotion necessarily connotes a decision branding the given candidate to be useless or unfit for promotion. This in a sense is stigmatisation while not fit for promotions may imply lesser stigmatisation and would not indicate that the concerned candidate is totally useless for promotion. It may only imply that he has not got sufficient merit to be promoted at that stage. It must therefore he held that para 12. 1 while introducing a contrary criterion for displacing a candidate on the basis of unfitness for promotions implies a negative test while rule 8 applicable in general to other caste candidates implies a positive test. The distinction and difference between the two cannot be obliterated as tried to be submitted by Mr. Shah. It is also not possible to agree with him that what is laid down by para 12. 2 by way of concession is directory and not mandatory. It has to be kept in view that under the scheme of statutory rules themselves. the Central Government has been permitted to give concession per rule 13 to scheduled tribe and scheduled caste candidate for the purpose of promotion to grade I and to that extent rigour of rule 8 must necessarily get whittled down. Once that happens it cannot be said despite direction given in para 12. 2 that the Central Government can depart from the same at its sweet will. Once that happens it cannot be said despite direction given in para 12. 2 that the Central Government can depart from the same at its sweet will. It is a binding guideline applicable in all cases of selection foe promotion of scheduled tribe and scheduled caste candidates. It cannot be departed from at the whim or fancy of any one. Submission of Mr. Shah that all that para 122 seeks to do is to permit entry of those scheduled tribe and scheduled caste candidates on the panel who would otherwise not get included and have been elbowed out by more meritorious candidates cannot be countenanced for the simple reason that such an approach would be relevant only in cases when the criterion for promotion is merit-cum-seniority where more meritorious candidates may elbow out less meritorious candidates. But when the criterion for leaving out candidates is positive unfitness for promotion it being a negative test there is no question of comparison between candidates. In such case only if a given candidate is found to be useless and unfit for promotion then only be can be weeded out. Consequently the submission of Mr. Shah if accepted would bring in by back door the concept of merit. Cum-seniority as enjoined under rule 8 which on the express language of para 12. 2 of the brochure is given a go-bye by adopting negative test. It must therefore be held that the DPC while it left out the name of the petitioner on the panel of selected candidates fit for promotion to grade I adopted the general criterion of merit-cumseniority as laid down by rule 8 (1) (A) and did not apply the correct test as enjoined upon it by para 12. 2 being criterion of seniority-cum merit viz. the negative test. ( 20 ) IN order to appreciate the correct working of the criterion contained in rule 8 (1) (A) simpliciter and the combined working of rule 8 (1) (A) and para 12. 2 (a) of Chapter 12 of the brochure which is found to be applicable on the facts of the present case it will be apposite to consider at this stage an illustration. The following basic data may be assumed for the purpose of this illustration. 2 (a) of Chapter 12 of the brochure which is found to be applicable on the facts of the present case it will be apposite to consider at this stage an illustration. The following basic data may be assumed for the purpose of this illustration. There are three vacancies in higher post in grade I. There are seven candidates A B C D E F and G who belong to grade II and claim promotion to grade T. Out of these candidates A is a scheduled caste candidate B is a scheduled caste candidate D is a scheduled tribe candidate while candidates C E F and G are other caste candidates. If candidates A to G are assumed in the order of seniority in grade II as A B C D E F and G and if the DPC which considers their relevant service records for deciding as to whether they or any of them should be empanelled grades A as unfit B as not yet fit C as good D as good E as very good F as very good and G as outstanding by application of relevant criteria for selection by way of promotion as enjoined by rule 8 and para 122 the following result would emerge which can for the purpose of convenience be tabularised as under : @@@ Candidates Whether S. T. or S. C. Grading Selection as Applicability Para 12. arranged as (as there is no reser- by D. P. C. per criterion of criterion 2 as per seniority vation for either S. C. of merit laid laid down by interpre- in grade 11. or S. T.) for three down by para 12. 2 as ted by posts there will be 7 rule 8. submitted by Mr. S. D. candidates in the Mr. Desai Shah for field for selection. respon- dents. 1 2 3 4 5 6 A S. C. Unfit x x x B S. C. Not yet fit x 5 x C - Good x x x D S. T. Good x 4 4 E - Very good 2 2 2 F - Very good 3 3 3 G - Outstanding 1 1 1 Final GEF GEFDB GEFD Panel @@@ . ( 21 ) THE aforesaid table shows that if the criterion is pure merits those candidates who are styled as unfit or not yet fit go out of picture once for three vacancies three very good and outstanding candidates are available. But when the criterion laid down by para 12. 2 projects itself so far as D who is a scheduled tribe candidate and B who is scheduled caste candidate are concerned they have to be empanelled as DPC has not graded them unfit for promotion. In fact D is good while B is not yet fit and still they walk in the panel by the thurst of concession given by para 12. 2. On Mr. S. D. Shahs contention D as a scheduled tribe candidate can walk in because according to him even though he was less meritorious he was not found unfit for promotion by DPC. He was graded `good but he was elbowed out by better candidates. Therefore he can walk in the panel by virtue of para 12. 2. But according to him B can never enter the panel as he was found not yet fit for promotion which was equivalent to being graded as unfit. As seen earlier it is impossible to agree with the aforesaid contention of Mr. Shah and hence the formation of the panel as visualised by him on the combined operation of para 12. 2 and rule 8 cannot be accepted as feasible or permissible. ( 22 ) IT may also be noted at this stage that the respondents themselves have well appreciated the difference between grading as unfit and grading as not yet fit. In the clarificatory affidavit-in-reply dated 4 this aspect of the matter is brought out by the respondents themselves as seen earlier. Consequently it is not possible to countenance the submission of Mr. Shah that the words `unfit for promotion in para 12. 2 implicitly include therein cases of candidates who are found to be not yet fit. On the express language of para 12. 2 and also in the light of the statement on oath by the respondents themselves such an interpretation of para 12. 2 is not possible. ( 23 ) HOWEVER even assuming that such an interpretation is possible as suggested by Mr. Shah even then if the interpretation suggested on behalf of the petitioner by Mr. 2 and also in the light of the statement on oath by the respondents themselves such an interpretation of para 12. 2 is not possible. ( 23 ) HOWEVER even assuming that such an interpretation is possible as suggested by Mr. Shah even then if the interpretation suggested on behalf of the petitioner by Mr. Desai is more beneficial to the class of petitioner when concessions envisaged by para 12. 2 are meant and the contrary interpretation suggested by Mr. Shah whittles down the scope and ambit of these conclusions and narrows them down that construction which advance the remedy and the benevotent purpose underlying the grant of concession envisaged by scheme of para 12. 2 has to accepted as compared to other interpretation which does not fully subserve that purpose. Even on that ground the interpretation of para 12. 2 as suggested on behalf of the petitioner has to be accepted. As a result of the aforesaid discussion it must be held that the proceedings of the DPC held on 11-1-1983 were null void and illegal so far as these proceedings resulted in excluding the name of the petitioner from the panel as prepared as a result of the deliberations of the DPC. The said resultlogically follows from the finding that the DPC while considering the case of the petitioner wrongly applied the positive test of selection instead of negative test that is finding out whether the petitioner was positively unfit for promotion as enjoined by para 12. 2 of Ch. 12 of the brochure. The order at annexure B dated 19-5-1984 Will have to be treated as illegal and inoperative qua the petitioner to that extent. However in view of the concession given by Mr. Desai for the petitioner as noted in the earlier part of this judgment selection of all the five officers as mentioned in the office order dated 19-5-1984 at annexure H will stand untouched and unaffected. The first contention of Mr. Desai stands accepted to the aforesaid extent. [the Rest of the judgment not approved for reporting hence not published. ] rule made absolute to some extent. .