# D.K. MITRA AND ORS v. UNION OF INDIA AND ORS - **Citation:** [1985] Supp. 1 S.C.R. 818 - **Court:** Supreme Court of India - **Decided:** 1985 - **Case number:** Writ Petition No. 8353 of 1981 - **Bench:** Y.V. Chandrachud, R.S. Pathak, Sabyasachi Mukharji - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-k-mitra-and-ors-v-union-of-india-and-ors-9131 - **Pages:** 31 ## Headnote Indian Railway Medical Service (District Medical Officers) Recruitmenl Rules 1965/lndlan Railway Medical Service (District Medical Officers) Recruitment Rules 1973/lndian Railway Medical Service (Dirisional Medical Officers/ Senior Medical Officers) Recruitment Rules 1975/lndian Railway Medical Ser11i{e (Chief Medical Officers, Additional Chief Medical Officers, Med/cal Superintendents and Divisional/Senior Medical Officers) Recruitment R11/es 1978-lndian Railway Medical Service-Combined seniority list of Divisional Medical Officers-Promotees and direct recruits-Promotion to post of Medical Superintendent-Validity of-Pron1otion-Principle of''non~selection''-~Yhether equivalent to "seniority-cu1n-suitabili1y"-Non-classijication of posts into permanent and tenrporary- Whether all posts to be regarded as pern:anent-Person& appointed substantfrely whetlrcr could be senior to persons appvinted in officiating capactiy-Persons appointed to the higher post on the basis of ·'selection'- 1¥hetlter could be junior to the persons appointed subsequently-Zone wise confirnration-Whethe:· permissible in case of an All India Service-Detern1inalion of seniority-Confirmation date whether relevant-Criteria for fixing inter-se se11iority between promotees a.-1d direct recruits-What is- Quota for direct recruitment-Not maintained for long period-Whether there could be rotation of posts. The Indian Railways Medical Service consists of Assistant Divisional Medical Officers Class I (before January 1, 1973 described as Assistant Medical Officers Class II). Divisional Medical Officers, Medical Superintendents, Chief Medical Officers and Director General of Medical Services. The Petitioners in the writ petition who were Assistant Medical Officers Class II were confirmed, one in 1962 and the others in 1963. During the years 1970 to 72 they were selected by Departmental Promotion Committees for officiating appointments to the Class I post of Divisional Medical Officers. At that time the Indian Railway Medical Service (District Medical Officers) H Recruitment Rules 1965 were applicable. Those Rules were repealed and replaced by the Indian Railway Medical Service (District Medical Officers) Recruitmeat Rules JQ73. Under the Rules of 1965 and the Rules 1973 the pQ~ts of Di~tri~t ?vfe4ical Offlcers w¢re treated a$ selection post3. • D.K. MITRA V. UNION 819 The existing pay scale of Rs. 350-900 attached to the post of Assistant Medical Officer was revised by the Third Pay Commission and split into two pay scales, a higher Class I scale of Rs. 700-1600 and a lower Class II scale of Rs. 650-1200 and the posts of Assistant Medical Officers were divided into those carrying the higher pay scale and those carrying the lower pay scale. The upgraded posts in the higher pay scale of Rs. 700-1600 were designated as "Assistant Divisional Medical Officers". The petitioners were plactd in the higher pay scale of Rs. 700-1600 and were d~signated as Assistant Divisional Medical Officers with effect from January 1, 1973. The Rules of 1973 were replaced by the Indian Railway Medical Service (Divisional Medical Officers/Senior Medical Officers) Recruitment Rules 1975, which were further-replaced by the Indian Railway Medical Service (Chief Medical Officers. Additional Chief Medical Officers, Medical Superintendents and Divisional Senior Medical Officers) Recruitment Rules, 1978. Under these Rules promotion is effected on the principle of ''non-selection", that is, on "seniority-cum-suitability'' basis. The Rules of 1965 showed that there were 101 posts in the grade of Divisional Medical Officers. The Rules of 1973 mentioned 109 posts and referred to them as permanent posts only. The Railway Ministry for the promotion of Assistant Medical Officers to the Class I posts of Divisional Medical Officers indicated the number of existing vacancies for the purpose of permanent promotion and the number of anticipated vacancies for the purpose of officiating appointments, the number under ## Text _Characters 0–39,895 of 80,092. This is a partial read: ask again with offset=39895 for what follows._ A B c D E F G 818 D.K. MITRA AND ORS. v. UNION OF INDIA AND ORS. July I, 1985 [Y.V. CHANDRACHUD, C.J., R.S. PATHAK AND SABYASACHI MUKHARJI, JJ.] Indian Railway Medical Service (District Medical Officers) Recruitmenl Rules 1965/lndlan Railway Medical Service (District Medical Officers) Recruitment Rules 1973/lndian Railway Medical Service (Dirisional Medical Officers/ Senior Medical Officers) Recruitment Rules 1975/lndian Railway Medical Ser11i{e (Chief Medical Officers, Additional Chief Medical Officers, Med/cal Superintendents and Divisional/Senior Medical Officers) Recruitment R11/es 1978-lndian Railway Medical Service-Combined seniority list of Divisional Medical Officers-Promotees and direct recruits-Promotion to post of Medical Superintendent-Validity of-Pron1otion-Principle of''non~selection''-~Yhether equivalent to "seniority-cu1n-suitabili1y"-Non-classijication of posts into permanent and tenrporary- Whether all posts to be regarded as pern:anent-Person& appointed substantfrely whetlrcr could be senior to persons appvinted in officiating capactiy-Persons appointed to the higher post on the basis of ·'selection'- 1¥hetlter could be junior to the persons appointed subsequently-Zone wise confirnration-Whethe:· permissible in case of an All India Service-Detern1inalion of seniority-Confirmation date whether relevant-Criteria for fixing inter-se se11iority between promotees a.-1d direct recruits-What is- Quota for direct recruitment-Not maintained for long period-Whether there could be rotation of posts. The Indian Railways Medical Service consists of Assistant Divisional Medical Officers Class I (before January 1, 1973 described as Assistant Medical Officers Class II). Divisional Medical Officers, Medical Superintendents, Chief Medical Officers and Director General of Medical Services. The Petitioners in the writ petition who were Assistant Medical Officers Class II were confirmed, one in 1962 and the others in 1963. During the years 1970 to 72 they were selected by Departmental Promotion Committees for officiating appointments to the Class I post of Divisional Medical Officers. At that time the Indian Railway Medical Service (District Medical Officers) H Recruitment Rules 1965 were applicable. Those Rules were repealed and replaced by the Indian Railway Medical Service (District Medical Officers) Recruitmeat Rules JQ73. Under the Rules of 1965 and the Rules 1973 the pQ~ts of Di~tri~t ?vfe4ical Offlcers w¢re treated a$ selection post3. • D.K. MITRA V. UNION 819 The existing pay scale of Rs. 350-900 attached to the post of Assistant Medical Officer was revised by the Third Pay Commission and split into two pay scales, a higher Class I scale of Rs. 700-1600 and a lower Class II scale of Rs. 650-1200 and the posts of Assistant Medical Officers were divided into those carrying the higher pay scale and those carrying the lower pay scale. The upgraded posts in the higher pay scale of Rs. 700-1600 were designated as "Assistant Divisional Medical Officers". The petitioners were plactd in the higher pay scale of Rs. 700-1600 and were d~signated as Assistant Divisional Medical Officers with effect from January 1, 1973. The Rules of 1973 were replaced by the Indian Railway Medical Service (Divisional Medical Officers/Senior Medical Officers) Recruitment Rules 1975, which were further-replaced by the Indian Railway Medical Service (Chief Medical Officers. Additional Chief Medical Officers, Medical Superintendents and Divisional Senior Medical Officers) Recruitment Rules, 1978. Under these Rules promotion is effected on the principle of ''non-selection", that is, on "seniority-cum-suitability'' basis. The Rules of 1965 showed that there were 101 posts in the grade of Divisional Medical Officers. The Rules of 1973 mentioned 109 posts and referred to them as permanent posts only. The Railway Ministry for the promotion of Assistant Medical Officers to the Class I posts of Divisional Medical Officers indicated the number of existing vacancies for the purpose of permanent promotion and the number of anticipated vacancies for the purpose of officiating appointments, the number under each category being specified zone-wise. A Class I Departmental Promotion Committee met on several occasions and considered the cases of candidates who had completed five yean and abov~ of service as A<>sistant Medical Officers for substantive promotion and for officiating promotion, the field of choice being extended to six times the number of vancancies. The petitioners were selected on the basis of merit and appointed to officiate as Divisional Medical Officers on different dates in 1971 and 1972, except petitioner No. 7 who was promoted and appointed in 1974. The RailwHy Board on October 30, 1979 published a combined seniority list of Divisional Medical Officers recruited directly or by promotion. Respon~ dents Nos. 4 to 64 included both promotees and direct recruits and were shown in that list. The petitioners did not find place in the seniority list. Subsequently A B c D E F on the basis of that seniority list, some of the respondent Divisional Medical G Officers were appointed on August 31, 1934 to officiate as l\iledical Superintendents. In the Writ Petition under Art. 32 the _petitioners challenged the validity of the combined seniority list dated 30th October, 1979 of Divisional Medical Officers and of the officiating promotions to the posts of Medical SuperintenH dents as violative of Arts. 14 and 16 of the Constitution, contending: that they were promoted as Didsioaal Medical Officers much earlier than the promotee respondents; that their promotion was made by selection on the basis of merit A B c D E G H 820 SUPllBMll COURT REPORTS (1985) MUPPL. 1.C.I.. adjudged by the Departmental Promotion Committees under the Rules of !965; that they had continued in service as Divisional Medical Officers against vacancies in permanent posts without interruption for periods ranging between 8 years to 12 years, and that the promote• respondents, who had held such posts for shorter periods, had been confirmed before the petitioners and shown senior in the seniority list and preferred for promotion as Medical Superintendents; that the petitioners should have been confirn1ed in the normal course; that the promotcc respondents have been confirmed zone-wise, and such confirmation cannot serve as a proper reference for determine seniority because when confirmation is granted zone-wise, it depends on the fortuitous accrual of vacancies arising arbitrarily at different times and in different numbers in different individual zones; that if the date of confirmation is adopted as the criterion, confirmation should not be reckoned on a zonal basis. Promotion to the post of Medical Superintendents, which is an all India cadre post should properly be drawn on an All lndia basis and that if confirmation has to be considered zone-wise then for the purpose of promotion to the all-India cadre of Medical Superintendents the only logical and uniform criterion shouJd be the total lenght of continuous service as Divisional Medical Officers reckoned from the date of promotion; that for the purpose of fixing seniority in the grade of Divisional Medical Officers the seniority in the grade of Assistant Medical Officers or Assistant Divisional Medical Officers is of no material significance because under the Rules in force when the promotion in the instant case were made, the petitioners were governed by the principle of selection on the basis of merit; that the quota prescribed for direct recruitment and for promotion under the Rules bas been wrongly applied at the stage of confirmation when it should have been applied at the stage of appointment; and that there is no provision for applying the principle of rotation of vacancies between direct recruits (lnd promotees for the purpose of determining relative seniority between them. The respondents, however contended: that the seniority list has been correctly prepared, it contains the names of only those officers who were either directly recuited as Divisional Medical Officers or had been approved for permanent promotion against the quota of posts reserved for them 10 vacan~ cies allotted among the individual Railways on the basis of the cadre position of each Railway, and ill.at none of the pt:titioners qualified for inclusion in the seniority list as they had been promoted in an officiating capacity to temporary vacancies in the posts of Divisional Medical Officers; that the petitioners have no right to be treated at par with those officers who were holding permanent posts on a confirmed basis, as confirmation was made on the basis of their selection for permanent promotion as Divisional Medical officers and their seniority was also fixed on that basis. According to the practice followed by the Railway Administration three select lists were prepared. List A set out the names of officers selected for sub'.>tantive promotion against permanent. vacancies. List B included the names of officers selected for officiating promotion against temporary vacancies. Tho petitioners were placed in List B. The third list. List C, bore the names of officers included in List B by earlier Departmental Promotion Comn1ittees but not cansidered as "suitable yet" for substantive promotion by subsequent Departmental Promotion Committees. The interse senipritf between the.direct recruit and from the date of promotion furnishes the criterion for determining seniority between the petitioners and the substantively appointed Divisional Medical Officers, that principle should apply - -· 1 ii.Kt. MITRA V, UNION 823 with equal vigour as between the petitioners and those promotec respondents who also began to serve, like the petitioners, in officiatiag appointments as Divisional Medical Officers. There is no reason why such promotee respondents, although appointed subsequently to the petitioners, should be treated as senior to them. [834 E-F] s. The date of confirmaUon is the material date for determining relative seniorty. The Railway administration in according confirmation has been influenced by two principle factors. One is that confirmation has been considered zone-wise. Confirmation has been made as vacancies have arisen within a particular zone. The vacancies differ fron1 zone to zone. They no not ariso equally in different zones, but turn on factors peculiar to each zone, such as the ~trength of the cadre within the zone, and the differing number of vacancies arising in different zones at different times. In other words, confirmation based on the placement of an officer within a particular zone 1nust necessarily be determined by factors confined to that zone and unrelated to an all India standard It is apparent that confirmations limited by such a local perspective c:innot serve as a legitimate base for drawing up a seniority list intended for efft"cting promotions to the all India cadre of Medical ~uperintendents. To adopt the date of confirmation as the governing point in such circumstances is to inject an element of inequality into the very foundation of the promotion process. It is conceivable that the Railway Administration has adopted the rule of ac.:ording confirmations zone-wise for certain practical consideration and the validity of that practice need not be adjudicated on. But such confirmations cannot legitimately constitute the basic norm for drawing up a seniority list of Divisional Medical Officers for the purpofe of promotion to the grade of Medical Superintendents. The principle must be that seniority should be related to the length of continuous service as Divisional Medical Officers reckoned from the date of promotion to the post; such service should not include any period served in a forti.;itous, stop-gap or ad hoc appointment. [834 G-H; 835 A-E] 9. After implementation of the recommendations of the Third Pay Commission, all the officers comprising the two groups were Assistant ~1edical Officers, and an Assistant M ~dical Officer was nothing but as Assistant Medical Officer who drew the higher revised scale of pay. The conclusion is inescapable that Assistant Divisional Medical Officers were, for the purpose of promotion as Divisional Medical Officers, governed by the Rules of 1965 and the Rules of 1973. Those Rules mention Assistant Medical Officers as a source of recruitment, without referring to any limiting qualification that they should be officers drawing a Class II scale of pay. The expression "Assistant Medical Officer" in those Rules is comprehensive enough to include all Assistant Medical Officers, whether drawing the class II revised scale of pay or entitled to the Class I revised scale of pay. And all such Officers were, under those Rules, governed by the priniciple of selection on merit for promotion as Divisional Medical Officers. The Assistant Medical Officers were designated as Assistant Divisional Medical Officers with effect from January 1, when the Rules of 1965 were still in force The Rules of 1973 came into force in August, 1973. It is true that when Assistant Medical Officers were designated as Assistant Divisional Medical Officers in the revised Class I scale of Rs. 700-1600 by A B D E G H A B c D E F G H 824 SUPREME cotJR T REPoRTS (1985) SUPPL. S.C.!l. Notification No. E(GP) 74/l/IS3 dated July 24, 1976, the notification spoke of the "appointment" of Class II Assistant Medical Officers as Assistant Divisional Medical Officers, but having regard to the terms of the schedule to the letter dated December 31, 1974 such notifications must be understood to mean that the Assistant Officers had been assigned the Class I scale of Ra. 7001600 and merely described as Assistant Divisional Medical Officers. They continued to belong to the broad category of "Assistant Medical Officers". Upon Assistant Medical officers being designated as Assistant Divisional ti.1edical Officers under the new scheme, there was no corresponding amendment in the Rules of 1965 or the Rules of 1973. It is for the first time, under the Rules of 1978, that the post of Divisional Medical Officer is described as a "nonselection" post to be filled by promotion from the ranks of Assistant Divisional Medical Officers and by direct recruitment. The only Assistant Medical Officers now entitled to promotion as Divisional Medical Officers were those drawing the Class I scale of Rs 700·1600 and designated as "Assistant Divisional Medical Officers". The new sub-division of Assistant Medical Officers described as Assistant Divisional Jv1edical Officers was deemed to have taken birth on January I, 1973 five and a half years before the Rules of 1978 were brought into force. It could never have been intended that this class of Officers should exist in a v .cuum where no rules operated. There was no vacuum because they were comprehended within the expression "Assistant Medical Oftlcer" in the Rules of 1965 and the Rules of 1973, and therefore, no amendment was consider~d necessary in those Rules to take congnisance of this class. [«37 E-H; 838 A-G] 10. The principle of selection by merit, enunciated in the Rules ofl 965 and the Rules of 1973 governed the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers) to the posts vf Divisional Medical Officer before the Rules of 1978 came into force Both before and after January 1, 1973, during the period before the Rules of 1978 came into force_ the principle of "non-selection", that is seniority-cum-suitability in the lower grade, which was provided in the Rules of 1978 did not apply to the promotion of Assistant Medical Officers (including Assistant Divisional Medical Officers) to the posts of Divisional Medical Officers (838 G-H; 839 A] 11. The confirmation of the petitioners and all other officers appointed to the posts of Divisional Medical Officer before the Rules of 1978 came into force must be governed by the Rules of 1965 and the Rules of 1973. The promotions and appointments made under the Rules of 1965, on the repeal of thoce rules by the Rules of 1973, fall to be governed by the Rules of 1973. [839 D-EJ 12. The inter se seniority between the members of a service will ordinarily depend on the date of entry into the grade. That is an event governed by the Rules of recruitment, whether it be direct recruitment or pro .. motion on the basis of selection on merit or on the basis of seniority in the lower grade or some other factor. Where seniority is fiited in a grade according to the length of service in that grade, that implies a reference back to the date of entry. It is wholly immaterial when the seniority list is prepared. [840 C-E] In the instant case, applying the criteria for determining seniority vis-a-vis the promotee respondents and the petitioners to the case of petitioners and the / D.K. MITRA V. UNION 82$ direct recruits, the petitioners must be held senior to the dire£l recruits appointed subsequently to them. [842 D-E] A O.P. Sing/av. Union of lndia,[1984) 2 S.CC. 450, followed. 13. The rules themselves do not lay down any principle of rotation. They specify the quotas only. lt was for the first time on May 26/27, 1976 that the Railway Ministry by its Letter No. E(O) 1-74/SR-6/IO directed that "the seniority of Class II officers of the Medical Department, promoted to Class l Senior Scale against the quota earmarked for ii particular year vis·a-vis the officers recruited against the direct recruitment quota for that year wHI be fixed on a rotational basis with reference to the dirCct recruitn1ent and Pf9motional quotas in force from time to time." This directive, however, can' ge Ot no assistance to the respondents. It may be open to an administration lo work the quota rul~ through a principle of rotation, but that implies that a quota rule is being actively operated and effect is being given to it. Jn the present cas_e, the quotas laid down by the Rules were not observed at all and no direct recruitment was made, during the years 1973 to 1976. Indeed, the proces~ 'or 'direct recruitment was employed on a substantial basis only from 1978 onwards. There was power under Rule 7 of the Rules of 1973 to relax the provisions of those rules, which would include the provision requirin$ the observance of specified quotas for recruitment from promotional and from direct r:ecruitment sources. [843 G·H; 844 A-DJ A. Janardhana v. Union of India & Ors., [1983] 3 S.C.C. 601, followed, and A.K. Subraman & Ors. etc. v. Union of India & Ors., [1975] 2 S.C R. 979 inapplicable. P,S. Mahal v. Union of India, [1984] 4S.C.C. 545 and Blshan Sarup Gupta v. Union of India, [1975] Supp, S.C.R. 491, referred to. [847 Ej 14. The directly recruited Divisional M~dical Officers are entitled to B c D E seniority only from the date of their entry into service and not from any F anterior date, and therefore cannot enjoy seniority above the petition~rs. ORIGINAL JURISDICTION: Writ Petition No. 8353 of 1981. Under Article 32 of the Constitution of India P.P. Rao and Parijat Sinha for the Petitioners. M.M. Abdul Khader, Girish Chandra and Mis; A Subhashini for the Respondents. The Judgment of the Courl was delivered by G H A B c D E F G H 8~6 SUPltEME COURT REPORTS (1985) SUPPL. s.c.k. PATHAK, J: By this petition under Article 32 of the Constitution the petitioners challenge the validity of a combined seniority list dated October 30, 1979 of Divisional Medical Officers and of promotions and officiating appointments made on the basis of that seniority list to posts of Medical Superintendents In the Indian Railways Medical Service. Medical Service in the Indian Rail ;vays is structured in ascend· ing levels. At the base, for the purpose of this case, is the cadre of Assistant Divisional Medical Officers Class I (who before January I, 1973 were described as Assistant Medical Officers Class II). Above them is the cadre of Divisional Medical Officers. The next above is the cadre of Medical Superintendents. Still higher rank Chief Medical Officers, and the apex of the heirarchy is held by the Director General of Medical Services. There are eight petitioners. They were Assistant Medical Officers Class II and had been confirmed in that grade, one petitioner in 19 62 and the others in 1963. During the years 1970 to 1972, the petitioners were selected by Departmental Promotion Committees for officiating appointments to the Class I posts of Divisional Medical Officers, when the Indian Railway Medical Service (District Medical Officers) Recruitment Rules, 1965 were in force. Those mies were repealed and replaced by the Indian Railways Medical Service (District Medical Officers) Recruitment Rules, 1973. Under the Rules of 1965 and the Rules of 1973, the posts of District Medical Officers were treated as selection posts. To give effect to the recommendations of the Third Pay Commission, the scale3 of pay of existing categories of officers were revised. The existing pay scale of Rs. 350·900 attached to the posts of Assistant Medical Officer was revised and split into two payscales, a higher Class I scale of Rs. 700-1600 and a lower Class II scale of Rs. 650-1200. The posts of Assistant Medical Officers were divided into those carrying the higher pay scale and those carrying the higher pay scale. A very large number of posts of Assistant Medical Officer were upgraded to the higher pay scale of Rs. 700-1600, and were designated as "Assistant Divisional Medical Officer". The petitioners were placed in the higher pay scale of Rs. 700-1600 and were designated as Assistant Divisional Medical Officers with effect from i>.ic. MITRA v. uNiON (Pathak, J.) 821 January I. 1973. The screening of over 2000 Assistant Medical Officers for the purpose of upgrading them to the higher scale kept A the Screening Commitee busy from 1974 to 1976 or so, and practically no recruitment was made during those year either by permanent promotion or direct recruitment to the posts of Divisional Medical Officer. B The rules of 1973 were replaced by the Indian Railway Medical Service (Divisional Medical Officers/Senior Medical Officers) Recruitment Rules, 1975. These, in their turn, yielded place to the Indian Railway Medical Service (Chief Medical Officers, Additional Chief · edical Officers, Medical Superintendents and DivisionaliSenior Medical Officers) Recruitment Rules, 1978. Under the Rules of 1978, C promotion is effected on the principle of "non-selection", an expres· sion in the Rules which is construed by the Railway administration as "seniority-cum-suitability". By a letter No.E (0) I-78/SR-6/14 dated October 30, 1979 the D Railway Board published a combined seniorty list of Divisional Medical Officers recruited directly or by promotion. The respondents Nos. 4 to 64 were shown in that list. They include promotees as well as direct recruits. The petitioners did not find place in the seniority list. Subsequently, on the basis of their positiou in that seniority list, some of the respondent Divisional Medical Officers E were appointed to officiate as Medical Superintendents by a Railway Board letter No.E(O)lll-81 PN 6/199 dated August 31, 1981. The petitioners challenge the combined seniority list of Divisional Medical Officers and the officiating promotions to the F posts of Medical Superintendents. The petitioners contend that the seniority assigned to the respondents Nos. 4 to 64 and the consequent promotions made thereafter violate Articles 14 and 16(1) of the Constitution. The grievance operates in two dimen· sions, against the promotee respondents and against the direct recruit respondents. G We propose to consider first the grievance of the peti· tioners in respect of the seniority accorded to the promotee respondents as Divisional Medical Officers and their promotion to H officiate as Medical Superintendents. The case of the petitioners is that the petitioners were promoted as Divisional Medical Officers much before the promotee respondents, that their promotion was made A B c D E F 828 SUPIUlME COURT REPORTS (1985] SUPPL. s.e.I\. by selection on the basis of merit adjudged by Departmental Promotion Committees under the Rules of 1965, that they had continued in service as Divi;ional Medical Officers against vacancies in permanent posts without interruption for periods ranging respectively between 8 years to 12 years, and yet the promotee respondents, who had held such posts for shorter peroids, had been confirmed before the petitioners and shown senior in the seniority list and preferred for promotion as Medical Superintendents. It is contendeds that the petitioners should have been confirmed in the normal course, the order of their promotion against permanent vacancies. The petitioners submit that the promotee respondents have been confirmed zone-wise, and such confirmation cannot serve as a proper reference for determining s~niorty, because when confirm1tion is granted zone-wise, it depends on the fortuitous ac rual of vacancies arisdg arbitrarly at different times and in different numbers in different individual zones. The petitioners contend that if the date of confirmation is adopted as the criterion, confirmation should not be reckoned on a zonal basis, but as if the vacancies arose in a single all India structure for, the petitioners say, a seniority list prepared for the purpose of Promo• lion to the post of Medical Suprientendents, which is an all India cadre, should properly be drawn on an all India basis. The petitioners urge that if confirmation has to be considered zone-wise, then for the purpose of promotion to the all India cadre of Medical Superintendents the only logical and uniform criterion should be the total length of continuous service as Divisional Medical Officers reckond from the date of promotion. It is a criterion which makes the arbitrary chance of coofirmation against fortuitous vacancies in individual zones irrelevant. Finally, the petitioners urge that for the purpose of fixing seniority in the grade of Divisional Medical Officers the seniority ruling in the grade of Assistant Medical Officers or Assistant Divisional Medical Officers is of no material sigeificance because under the Rules in force when the Promotions in instant case were made promotions were G governed by the principle of selection on the basis of merit. H The respondents, on the other hand, maintain that the seniority list has been correctly prepared, that it contains the names of only those officers who were either directly recruited as Divisional Medical Officers or had been approved for permanent promotion against the quota of posts reserved for them in vacancies allotted among the individual RailwaJs on the basis of the cadre position of each Rail- D.K. MITRA v. UNION (Pathak, J.) 829 way, and that none of the petitioners qualified for inclusion in the seniority list as they had been promoted in an officiating capacity to temporary vacancies in the posts of Divisional Medical Officers. The respondents contend that the petitioners have no right to be treated at par with those officers who were holding permanent posts on a confirmed basis, as confirmation was made on the basis of their selection for parmanent promotion as Divisional Medical Officers. It is stated that seniority was also fixed on that basis. The respondents rely on a practice, followed by the Railway Administration for several years, under which three Select Lists were prepared, List A set out the names of officers selected for substantive promotion against permanent vacancies. List B included the names of officers selected for officiating promotion against temporary vacancies. These officers were also considered subsequently by Departmental Promotion Committees for permanent promotion along with other eligible officers in the field. The petitioners were placed in list B. The third list C, bore the names of officers included in List B by earlier Departmental Promotion Committees but not considered as "suitable yet" for substantive promotion by subsequent Departmental Promotion Committees. It is stated that in the Railway Administration, Class JI officers were considered for substantive appointment to permanent vacancies in Class I posts for officiating appointment against temporary vacancies in Class I posts. In each case, there was a separate selection by a Departmental Promotion Commitee, and the selection was made zone-wise. The Departmental Promotion Committees, after considering the officers at five to six times the number of vacancies, made a selection on an assessment of their Confidential Records. It is stated that officers selected for officiating appointment, and subsequently coming within the field of consideration for permanent appointment against permanent vacancies, were also considered for selection by snbsequent Departmental Promotion Committees. In this manner, it is said, all eligible Class II officers were considered for permanent appointment against permanent vacancies, and the most meritorious were selected. It is pointed ont that this practice was terminated in the Medical Department of the Railways after 1972, because with effect from January 1, 1973, the Class II posts of Assistant Medical Officer were upgraded as Class I posts of Assistant Divisional Medical Officers. According to the respondents, at no time during the period ending with the year 1972, whenever Departmental Promotion Committees met for selecting officers against permanent vacancies, 8 c D E F G H A B c D E F G H 830 SUPB.EMB COUB.T REPOB.TS [1985] SUPPL. s.c.11.. did any of the petitioners fall within the field of consideration for permanent appointment in view of their place of seniority in the class II posts. It is also submitted that the promotion of the petitioners, then Assistant Medical Officers, to the post of Divisional Medical Officers in an officiating capacity againts temporary vacancies cannot he traced to the Rules of 1965 or the Rules of 1973 because those rules dealt with promotion to permanent vacancies only. Nor could the petitioners, when they became Assistant Divisional Medical Officers with effect from January l, 1973, claim the benefit of tue said Rules because those rules provided for selection of class II officers to class I posts. The respondents urge that the principle which truly governs the petitioners in the matter of promotion from the posts of Assistant Divisional Medical Officers is the principle of seniority-cum-suitability in the former grade embodied in the Rules of 1978. It is denied that this construction would amount to giving retrospective operation to the Rules of 1978. It is explained that when the question of preparing the seniority list arose, the Rules of 1978 were in operation, and they provided for permanent promotion on the basis of seniority-cum-suitability, and the rule of selection on merit operating under the earlier Rules no longer prevailed, and, in any event, could not apply when an Assistant Divisional Medical Officer, which was a Class I post, wai considered for promotion to the Class I post of Divisional Medical Officer Apparently, the promotee respondents were senior to the petitioners as Assistant Medical Officers or Assistant Divisional Medical Officers, and that seniority was made the basis of permanent promotion to the gcade of Divisional Medical Officers. The respondents dispute the proposition that promotion to the grade of Divisional Medical Officers must be made on the basis of the total lenght of service rendered as Assistant Medical Officers and Assistant Divisional Medical Officers considered on an all India basis as, they assert, promotion to vacancies has to be considered zone-wise. A perusal of the Rules of 1965 shows that there were IOI posts in the grade of Divisional Medical Officers. The Rules of 1973 mention 109 posts. The posts are not divided between permanent posts and temporary posts, and we must assume that the Rules refer to permanent posts only. It appears that proceedings were taken by the Railway Administration from time to time for the promotion of Assistant Medical Officers, to the Class I posts of Divisional Medical Officers. The Rail way Ministry indicated the number of existing vacancies for the purpose of permanent promotion and the number of - - D.K. MITRA '· UNION (Pathak, J.) 831 anticipated vacancies for the purpose of officiating appointment, the number under each category being specified zone-wise. The selection for both categories was made on the basis of merit. It may be noted that both under the Rules of l 965 and the Rules of 1973, the posts of Divisional Medical Officers were regarded as selection posts. A Class I Departmental promotion Committee met on February 20, 1970 and considered the case of candidates who had completed five years and above of service as Assistant Medical Officers for such recruitment. Both for substantive promotion and for officiating promotion the field of choice was extended to six times the number of vacancies. Another Class I Departmental Promotion Committee met on October 22, 1971 and January 3, 1972. A third Class I Departmental Promotion Committee held its meetings on September 29 and 30, 1972, and October 3, 1972. The Minutes of the several meetings indicate that the petitioners Nos. I to 8 were selected for officiating a ppointments, some of them being classified as "very goods" and others as "goods". They were accordingly appointed to officiate as Divisional Medical Officers on different dates in I 971 and 1972 and the petitioner No. 7, the last to be promoted, was appointed in 1974. The record shows that these were all regarded as officiating appointments to vacancies in the Class I posts of Divisional Medical Officers.