# S. RAMASWAMY v. UNION OF INDIA & ORS

- **Citation:** [1977] 1 S.C.R. 221
- **Court:** Supreme Court of India
- **Decided:** 1976-08-17
- **Case number:** Civil Appeal No. 381 of 1976
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-ramaswamy-v-union-of-india-ors-6907
- **Pages:** 8

## Headnote

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221
S. RAMASWAMY
A
v.
UNION OF INDIA & ORS.
August 17, 1976
LY. V. CHANDRACHUD, P. K. GOSWAMI AND A. C. GUPTA, JJ.J
8
Directorate General of Technical Development (Class l Posts) Recruitment
(Amendment) Rules, 1974, Rule 2, interpretation of-Whether officer 011 special
duty is in the same grade as Develapmellf Officers.
Two vacancies arose for the selection posts of Industrial Advisers in the
Directorate General of Technical DevelOpment, for which some Development
Officers including respondents Nos .. 6 to 11 applied.
The;;e respondents filed
a wri~ petition against the promotion of the appellant to these posts. The
Government oppo8ed the same. During the pendency of the petition wnich was
later dismissed; the appellan~ made a representation to the Departmental Promotion Committee for' considerinQI his preferential claim, but the same was not
placed before the Committee. The appellant made further representa.tion to the
Government, but the Committee decided to recommend respondents Nos. 6 and
7 for the appointment. The appellant filed a writ petition against the implementation of the recommendation, but the same was dismissed.
Allowing the appeal and directing that the appellant's name be included in
the list of eligible officers to be considered for promotion, the Conrt,
HELD: Under Rule 2 of the Directorate General of Technical Development
(Class I Po:!ts) Recruitment (Amendment) Rules, 1974, a person belOnging to
the first category, failing which, persons belonging to the 2nd category; and
persons in the 3rd category are, all and together, eligible for being considered
for promotion, subject to the fixation of the field of choice under the Home
Ministry's Memorandum dated May 16, 1957. Tk amended rule does not
mean that Development Officers can be considered for promotion to the post
of Industrial Ad vi;ier only ih the event that qualified persons f'rom the first
two categories are not ayailable. [224 D-F]
(2) The Amendment Rules of 1974, contemplate on their plain language
and are framed on the basis th~t the officer on special duty. is in a separate;
grade from the grade of Development Officers. In the particular context ih
whkh the words "in the grade" occur, they mean "in that particular grade",
indicating thereby that the two grades are different although their scale of pay
may be identical. The practice by which an integrated list of officers is preipared accordin!?! to the date on which they acquire eligibility, not having the
authority of law, is ,vitiated ih the in9tant case because of the 1974 recruitment
rules.
[225 E, 227 B-C, G]
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,.._
221
S. RAMASWAMY
A
v.
UNION OF INDIA & ORS.
August 17, 1976
LY. V. CHANDRACHUD, P. K. GOSWAMI AND A. C. GUPTA, JJ.J
8
Directorate General of Technical Development (Class l Posts) Recruitment
(Amendment) Rules, 1974, Rule 2, interpretation of-Whether officer 011 special
duty is in the same grade as Develapmellf Officers.
Two vacancies arose for the selection posts of Industrial Advisers in the
Directorate General of Technical DevelOpment, for which some Development
Officers including respondents Nos .. 6 to 11 applied.
The;;e respondents filed
a wri~ petition against the promotion of the appellant to these posts. The
Government oppo8ed the same. During the pendency of the petition wnich was
later dismissed; the appellan~ made a representation to the Departmental Promotion Committee for' considerinQI his preferential claim, but the same was not
placed before the Committee. The appellant made further representa.tion to the
Government, but the Committee decided to recommend respondents Nos. 6 and
7 for the appointment. The appellant filed a writ petition against the implementation of the recommendation, but the same was dismissed.
Allowing the appeal and directing that the appellant's name be included in
the list of eligible officers to be considered for promotion, the Conrt,
HELD: Under Rule 2 of the Directorate General of Technical Development
(Class I Po:!ts) Recruitment (Amendment) Rules, 1974, a person belOnging to
the first category, failing which, persons belonging to the 2nd category; and
persons in the 3rd category are, all and together, eligible for being considered
for promotion, subject to the fixation of the field of choice under the Home
Ministry's Memorandum dated May 16, 1957. Tk amended rule does not
mean that Development Officers can be considered for promotion to the post
of Industrial Ad vi;ier only ih the event that qualified persons f'rom the first
two categories are not ayailable. [224 D-F]
(2) The Amendment Rules of 1974, contemplate on their plain language
and are framed on the basis th~t the officer on special duty. is in a separate;
grade from the grade of Development Officers. In the particular context ih
whkh the words "in the grade" occur, they mean "in that particular grade",
indicating thereby that the two grades are different although their scale of pay
may be identical. The practice by which an integrated list of officers is preipared accordin!?! to the date on which they acquire eligibility, not having the
authority of law, is ,vitiated ih the in9tant case because of the 1974 recruitment
rules.
[225 E, 227 B-C, G]
'
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 381 of 1976.
(Appeal by Special Leave from the Judgment and Order dated
31.10.1975 of the Delhi High Court in Civil Writ No. 1077 of 1975).
F. S. Nariman and B. R. G. K. Achar, for the appellant.
Shyamala Pappu and Girish Chandra, for respondents 1-3.
Sobha Dikshit, for respondents 6-7.
The Judgment of the Court was delivered by
CHANDRACHUD, J.-On February 7, 1959 the appellant, S. Ramas~amy, was appointed as an Assistant Development Officer in
the
Drrectorate General of Technical Development in the Ministry
of
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222
SUPREME COURT REPORTS
[1977] 1 S.C.R.
Industry and Civil Supplies, Government of India. In 1964 he was
appointed as a Development Officer on an ad hoc basis and that
appointment was regularized in May, 1966. On December 1, 1966
the post of Officer on Special Duty was created in Lhe Directorate in
order to deal effectively with the development of agro-based food processing industries.
The Director General (Technical Development)
recommended the appellant for appointment to the post and in comse
of time the appointment was duly made.
In 1974 a question arose regarding promotion to the selection
post of Industrial Adviser in the Directorate.
Respondents 6 to 11 and
some others who were working as Development Officers filed
writ
petition No. 612 of 1974 in the Delhi High Court asking that the
Government of India be restrained from promoting the appellant to
the post of Industrial Adviser and that their claims to the post be
considered in preference to the appellant's claim. That petition was
dismissed on September 17, 1975.
During the pendency of the writ petition filed by respondents 6 to
11, the appellant had made a representation to the Departmental
Promotion Committee for considering his preferential claim to
the
post of Industrial Adviser.
That Committee met on August 7, 1975
for proposing a panel of officers for being considered for appointment
to the post of Industrial Adviser, but the appellant's representation
was not placed before the Committee.
The appellant made a further
representation to the Government on August 18, 1975 complaining
that though he was eligible for being appointed to the post of Industrial Adviser, his name was not included in the list of eligible officers
which was forwarded to the Departmental Promotion Committee for
due consideration for appointment to the post.
The Committee, in its meeting of August 7, 1975 decided to
recommend respondents 6
and 7 for
appointment as
Industrial
Advisers. On October 31, 1975 the appellant filed writ petition No.
1077 of 1975 in the Delhi High Court to restrain the Government
from implementing the recommendation and to restrain respondents
6 and 7 from taking charge of the posts of Industrial Advisers. That
petition was dismissed in limine by a Division Bench of the High
Court on October 31, 1975. This appeal by special leave is directed
against the speaking order which was passed by the High Court
while dismissing the writ petition summarily.
Recruitment to the post of Industrial Adviser (Chemicals) was
governed originally by the Directorate General of Technical Development (Class I posts) Recruitment Rules, 1963. Item 6 of the
Schedule annexed to those Rules related to appointment to the post
of Industrial Adviser (Chemicals), a Class I selection post, then
generally in the scale of Rs. 1300-100-2000. One of the methods
of recruitment to the post, as specified in column 9 of the Schedule,
was by promotion. Column 10 which regulated appointment
by
promotion read thus :
"Promotion :-Development Officer having a minimum
experience of 10 years in the grade provided however, that
)
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s. RAMASWAMY v. UNION OF INDIA (Chandrachud, J.)
223
in the scale of Rs. 1300-60-1600-100-1800, the minimum
experience shall be five years in that grade."
In exercise of the powers conferred by Article 309. of the Constitution, tl}e. President on January 30, 1974 made the J?rrectorate General of Technical Development (Class I posts) Recruitment (Amendment) Rules 1974. Rule 2 of these Rules amended column 10 of
the Schedule' to the Rules of 1963 by substituting the following entry
for the one extracted above :-
"Promotion :
(i) Officer on Special Duty (Fo?d ~rocessing Indust~i~s)
with 5 years' regular service m the grade; failmg
which with 10 years' regular service in the grade of
Development Officer and Officer on Special Duty
(Food Processing Industries) combined together of
which 4 years should be as Officer on Special Duty
(Food Processing Industries).
{ii) Development Officers having at least 10 years' regular service in the grade, provided that in respect of
Development Officers, who are in the grade of Rs.
1300-1800 not less than five years' regular service
shall be required."
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That the appellant is qualified and eligible for appointment as an
Industrial Ad1iser is beyond dispute and has at no stage been questioned.
But it has to be stated that for the purpose of computing the
completion of 5 years' service as an Officer on Special Duty, the
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period during which the appellant -was working in that post on an
ad hoc basis has to be excluded from consideration. The appellant
was appointed as an Officer on Special Duty on an ad hoc basis in
1966 but the appointment was regularized on January 23, 1970 after
the President made the Recruitment Rules dated January 14, 1970
regulating the method of recruitment to that post.
The appellant, ·
therefore, must be taken to have completed 5 years' service in the
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post of Officer on Special Duty on January 23, 1975.
It is also necessary to clarify that the decision of the Departmental
Promotion Committee to carve out three times the number of vacan-
-des viz., six as the zone of consideration for promotion to the grade
of Industrial Adviser is open to no exception and has in fact not been
challenged by the appellant.
The Office Memorandum dated May
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16, 1957 issued by the Ministry of Home Affars incorporates a decision
taken by the Government after considering the replies received from
the various Ministries and the Union Public Service Commission and
keeping in view the policy of Government, settled at the highest level,
that greater emphasis should be placed on merit as a criterion for
promotion. It records, inter alia, that the Departmental Promotion
Committee or other selecting authority should first decide the field oil
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choice, i.e. the number of eligible officers awaiting promotion who
should be considered for inclusion in- the select list and that the field
of choice, wherever possible, should extend to five or six times the
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SUPREME COURT REPORTS
[1977] 1 s.c.R.
number of vacancies expected within a year.
In the instant case,
two vacancies were to be filled in the post of Industrial Adviser but
instead of carving out 10 or 12 persons as the field of choice for
promotion, the Committee decided to select panel of 6 officers as the
zone of consideration. The Official Memorandum reflects but
a
policy decision which cannot have the force of a rule made under
Article 309 of the Constituticin and therefore, the fixation of ratio for
consideration for promotion may reasonably and rationally
differ
from case to case.
The decision to select a panel of six officers for
appointment to the two posts of Industrial Advisers, cannot be characterized as arbitrary or unreasonable.
Besides, even if a panel of 12
officers were to be selected for consideration, the appellant would still
· be out of it by the applicati<m of the impugned test adopted by the
Committe<),
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'.rhat test forms the centre of controversy in this appeal.
The
test adopted by the Departmental Promotion Committee for selecting
a panel of officers for consideration for promotion to the post of
Industrial Adviser may,
in terms of the counter affidavit field on
behalf of the Govt.
be described as a 'chronological test'. Under
the Amendment Rules 1974 the channel of promotion to the post of
Industrial Adviser is this : (i) Officer on Special Duty with five years'
regular service in the grade; or (ii) failing that, persons with
10
years' regular serbined service in the grade of Development Officer
and in the grade of Officer on Special Duty, of which 4 years of service·
has to be in the latter grade; or (iii) persons in the grade of Develop~
ment Officers having at least 10 years' regular service in that grade,
provided that in respect of Development Officers working in
thtt
grade of Rs. 1300-1800, 5 years' regular service would be sufficiefit
to qualify the officer for promotion. The amended rule does not,
of course, mean that Development Officers
can be considered for
.promotion to the post of Industrial Adviser only in the event that
qualified persons from the first 2 categories are not available.
A
person belonging to the 1st category; failing which, persons belonging to the 2nd category; and persons in the 3rd category are, all and
together, eligible for being considered for promotion, subject to the
fixation of the field of choice under the Home Ministry's Memorandum dated May 16, 1957. That field of choice was fixed in the
instant case at three ,times the number of vacancies viz.,
6.
The
appellant belongs to the 1st category and there was therefore no
question of going to the 2nd category.
The choice of eligible promotees was accordingly restricted to the 1st and 3rd categories.
But
in selecting the panel, what has been done by the application of the
chronological test is to ascertain the respective dates on which
the
Officer on Special Duty completed 5 years' regular service in that
grade and the Development Officers
completed 10 years'
regular
service in their grade, to arrange them in the order of seniority according to the dates on which they completed the qualifving service in
their respective grades and to select the first 6 only from the list so
made, for being considere<l for promotion to the two vacancies in the
post of Industrial Adviser.
In the integrated list of Development
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s. RAMASWAMY v. UNION OF INDIA (Chandrachud, J.)
225
Officers and Officer on Special Duty, appellant occupied the
~9th
position, since 18 Development Officers had completed 10 years regular service in their grade before the appellant had completed . S
years' regular service in his grade.
As the Depart~ental Pr_o~otion
Committtee had decided to carve out a ~eld of cho1c.e cons1stlllg of
six persons only, the appellant, being outside the _first sIX, ~as left out
of the select panel.
As we have indicat~ e~rhe!, even 1f the field
of choice were to extend to 12 officers, belllg six times ~he number ~f
vacancies, the appellant being 19th in the integrated hst would still
be out of that panel.
Learned counsel appearing on behalf of the Union of India has
strongly defended the method adopted by the Departmental Promotion
Committee for preparing the panel of selection.
She contends that
the Officer on Special Duty and Development Officer work in
the
same grade namely, the grade- of Development Officer, save with the
difference that· a Development Officer working as a Officer on Special
Duty draws a special pay of Rs. 200 in addition to the pay drawn by
him in the grade of Development Officer.
Therefore, according to
the counsel, the Committee was justified in preparing an integrated
list comprising the appellant as well as the Development Officers and
in arranging them, for the purpose of being considered for promotion,
according to the dates on which they completed the period of qualifying service.
On the record as it stands we find it difficult to hold that
the Officer on Special Duty, for the purposes of the Amendment Rules
of 1974, can be said to be in the same grade as the Development
Officer.
Those rules contemplate on their plain language and
are
framed on the basis that the Officer on Special Duty is in a separate
grade from the grade of Development Officers.
The rules rder to
Officer on Special Duty 'with S years' regular service "in the grade"
and Development Officers having 10 years' regular service "in the
grade". In the particular context in which the words "in the grade"
occur, they mean "in that particular grade",
indicating thereby in
ciear terms that the two grades are different.
Even if it be true that
the Officer on Special Duty draws, except for the special monthly pay
of Rs. 200, the same pay as a Development Officer and that, generally,
the two are in a similar scale of pay that would not justify the conclusion, for the purposes of the 1974 Rules, that they are in the same
grade.
Their scale of pay may be identical, we will so assume, and
yet they will be working in different grades, one in the grade of
Officer on Special Duty and the others. '.in the grade of Development
Officer.
This position may not be true universally and we propose
lay down no proposition of universal application.
We are
called
upon to interpret the 1974 Rules which, in our opinion, leave no
doubt that within the contemplation of those Rules is the supposition
that the Officer on Special Duty is in a grade different from that of
the Development Officer.
It is significant in this regard that the counter-affidavit filed on
behalf of the Union of India by Shri K. Srinivasan, Under Secretary,
Ministry of Industrial and Civil Supplies, Department of Industrial
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SUPREME COURT REPORTS
[1977) l S.C.R.
Development, says in terms that the grade of Officer on Special Duty
is different from the grade of Development Officer and that these two
being separate cadres, there was no question of drawing up a combined seniority list of officers in the two cadres. The affidavit further
concedes that the post of Officer on Special Duty carries higher responsibilities.
We might also mention that in the counter-affidavit
which was filed on behalf of the Government in the
Delhi High
Court in Writ Petition 612 of 1974, it was stated that the DirectorGeneral (Technical Development) had recommended the appellant
as "the only suitable officer" for appointment to the post of Officer
on Special Duty. That Writ Petition was filed by respondents 6 to
11 and others to restrain the Government from appointing the appellant as an Industrial Adviser and for certain other reliefs.
The stay
petition filed by respondents 6 to 11 was strongly resisted by
the
Government which took the stand that the appellant was eligible for
being considered for promotion and that a stay order ought
not
to be granted as no irreparable harm would result if the appellant was
appointed to the post of Industrial Adviser after being found suitable
for the promotion.
That affidavit, also sworn by Shri K. Srinivasan,
stated even in clearer terms that on confirmation as an Officer on
Special Duty, the appellant "ceased to belong to the grade of Development Officers".
The stand now taken by the Government is
directly contrary, its contention being that the Officer on Special Duty
is in the same grade as the Development Officers.
Considering the
wording of the 1974 Rules and the context in which the words "in
the grade" occur, we are inclined to the view that the stand taken by
the Government in the Writ Petition filed by respondents 6 to 11
was more in consonance with the recruitment rules.
The crux of the
Government's answer to that writ petition was that the appellant "was
eligible for consideration for promotion as Industrial Adviser (Chemicals) in terms of the Statutory Rules" and their stand, broadly, was
that the claims of all persons eligible for the post of Industrial Adviser
and "within the field of consideration" would be duly considered. The
appellant then was obviously considered to be both eligible and within
the field of consideration. The recruitment rules of 1974 have undergone no change since then and whereas only one vacancy was to be
filled then, there are two to be filled now.
It is therefore difficult
to appreciate the change in the attitude of the Government and the
diametrically opposite stand it is taking now that the appellant's name
is beyond the field of choice.
It has to be remembered that the writ
petition filed by respondents 6 to 11 and other Development Officers
asking, inter alia, that the appellant's name ought not to be considered
for the post of Industrial Adviser was dismissed on the opposition of
the Government.
The Government now wants to do exactly what
the Development Officers asked it to do by writ petition and which
writ petition the Government succeeded in havinrr dismissed on the
strength of its contention, amongst others, that the apoellant
was
eligible for the higher post and on the strength of the right it asserted
to consider thP. appellant for promotion. In fact, the Government
even 0oposed the stav aoolication in the earlier writ petition. indicating the impending possibility of the appellant's appointment
as In-
,dmtrial Adviser.
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227
No rule or notification is cited before us to support the "practice"
adopted by the Departmental Promotion Committee whereby though
the Officer on Special Duty and the Development Officers belong to
diflerent grades, a common list of officers was prepared according to
the dates on which the appellant, who is the sole incumbent of the
post of Officer on Special Duty, and Development officers completed
S and 10 years of service respectively.
By this process, the appellant
who belongs to a separate and distinct grade or carde was placed
19th in the integrated list, much below the fieltl of choice which
though, was rightly limited to 6 officers.
We do not suggest that the method or practice, by which an integrated list of officers is- prepared accorcjing to the dates on which
they acquire eligibility in order to find out which of those who are
eligible fall within the field of choice, is necessarily or in all circumstances bad. That practice, not having the authority of law, is vitiated in the instant case because of the 1974 recruitment rules which
envisage that an officer on Special Duty is in a separate grade, cadre
or clsas. It is for that reason wrong to put him in an integrated list.
The practice adopted by the Departmental Promotion Committee overlooks that the rule-making auth9rity, being conscious while framing;
the Rules of 1974 that there was only one Officer on Special Duty for
the time being to be considered for appointment as Industrial Adviser,
considered him to be in a separate grade and gave him a separate
treatment by dealing with him in a separate clause, namely clause (i)
which uses the singular.
In fact the history of the recruitment rules
itself shows that it was thought necessary to bring an Officer on Special
Duty of certain experience within the area of eligibility.
The rules
of 1963 restricted eligibility to Development Officers and it was for
the first time in 1974 th~t an Officer on Special Duty was brought
within that area.
The circumstance that the Officer on Special Duty
is placed in clause (i) and the Development Officers in clause (ii)
is not the point of matter and can confer no special privilege on the
former.
Such a sequence may well be fortuitous.
But what is important is that if the Rules intended that the two grades of officers should
be clubbed together and that an Officer on Special Duty should be
considered to be in the same · grade as Development Officers, the
easiest thing to do would have been to say, for example, that Development Officers of ten years' experience would be eligible for promotion as Industrial Adviser, provided that in the case of a Development Officer who is working as an Officer on Special Duty, five years'
experience in the latter post would be enough.
The integrated list,
in the light of these facts and because of the peculiar wording of the
1974 Rules, must theref()re go.
·
This might apparently create an impasse but the solution is simple.
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The field of choice fixed at six may be retained but amongst those six:
shall be the appellant, the other five being Development
Officers
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according to the dates on which they acquired eligibility. Alternatively, th~ field of choice may, for instance, be expanded to eight, being
four times the number of vacancies, in which case the appellant and
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SUPREME COURT REPORTS
[1977] 1 S.C.R.
seven Development Officers can be considered for promotion.
This
latter course may obviate possible hardship which would result if one
Development Officer is required to be dropped from the list by restricting the field of choice to six.
In either event, suitability for promotion is entirely for the concerned authority to decide and the fact
that the appellant must be included in the list of eligible officers who
fall within the field of choice does not mean that he must be promoted to one of the posts of Industrial Advisers.
Mere inclusion in such
a list confers no right on any one to be promoted to the higher post.
It only gives an opportunity to be considered for promotion.
For these reasons we allow the appeal, set aside the decision of
the High Court, and direct that the appellant's name be included in
the list of eligible officers for considering whether he is suitable for
promotion to the post of Industrial Adviser (Chemicals). The recommendation already made by the Departmental Promotion Committee
for appointment to the two posts of Industrial Adviser is quashed.
Appellant shall get his costs, here and in the High Court, from Respondent 1.
M.R.
Appeal allowed.