VARADARAJAN - (1.) THESE appeals by special leave are against the common judgment of a Division Bench of the Himachal Pradesh High Court rendered in Writ Petitions Nos. 2 of 1980 and 288 of 1979. They were heard together by us in view of this Court's Order dated 6-11-1980. Writ Petition No. 288 of 1979 was filed by Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur against the State, of Himachal Pradesh. Dr. S. P. Kapoor, Dr. R. M. Bali and Dr. K. Pandeya. Writ Petition No. 2 of 1980, was filed by Dr. R. M. Bali against the State of Himachal Pradesh and eight others including Dr. Jiwan Lal, Dr. (Mrs.) Damyanti Kapur, Dr. S. P. Kapoor and Dr. K. Pandeya, who were respondents Nos. 8, 9, 6 and 7 respectively in the Writ Petition. Dr. S. P. Kapoor, the appellant in C. A. No. 2104 of 1980 is the second respondent in writ Petition No. 288 of 1979 and 6th respondent in W. P. No. 2 of 1980. Dr. Jiwan Lal, the appellant in C. A. No. 2384 of 1980 is the first petitioner in W. P. Number 288 of 1979 and 8th respondent in W. P. No, 2 of 1980.
(2.) WRIT Petition No, 288 of, 1979, challenged the reversion of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur, the petitioners therein from the post of Deputy Directors of Health Services, as illegal and violative of the conditions of service as also the provisions of the Constitution of India, In WRIT Petition No. 2 of 1980 Dr. R. M. Bali prayed for quashing the seniority of specialists indicated in the Office Memo dated 2-11-1979 and Annexure PX-1 containing the list and for assignment of Serial No. 1 in the seniority list to him. Dr. R. M. Bali prayed for certain other reliefs also including declaration of the appointment of Dr. S. P. Kapoor as Director of Health Services as null and void and for his case being considered for appointment to that post on the basis of the seniority prayed for in his writ Petition. The case of Jiwan Lal and Dr. (Mrs.) Damyanti Kapur, the Writ Petitioners in W. P. No. 288 of 1979, was that they were appointed as Deputy Directors of Health Services on a regular basis. The post of Deputy Director, Health Service was held by Dr. Jiwan Lal for 4 1/2 years and by Dr. (Mrs.) Damyanti Kapur for about 3 1/2 years. The appointment of Dr. S. P. Kapoor, the appellant in C. A. No. 2104 of 1980 and Dr. R. M. Bali and Dr. K. Pandeya (respondents 2 and 4 in W. P. No. 288 of 1979) as Deputy Directors of Health Services, is contrary to the provisions of the Himachal Pradesh Health Service Rules, 1974 (hereinafter referred to as the 'Rules'). They were appointed in disregard of the rights of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur. The Departmental Promotion Committee constituted for making the appointment was not properly constituted as one of the members of the Committee, namely, the Principal Secretary to the then Chief Minister was unauthorisedly inducted into the Committee in the place of the Secretary to Government, Health and Family Welfare Department, Himachal Pradesh. Therefore, the proceedings of the Committee are vitiated. The annual confidential reports of the petitioners Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were initiated by an officer who was not only junior to them but also an aspirant for promotion to the higher post along with them. Therefore, those confidential reports should not have been taken into consideration for further promotion by the Departmental Promotion Committee. The appointment of Dr. S. P. Kapoor, the appellant in C. A. No. 2104 of 1980, Dr. R. M. Bali and Dr. K. Pandeya, respondents 2 and 4 in that Writ Petition was made in haste on 3-11-1979, immediately after the final seniority list was issued on 2-11-1979. The appointment of Dr. S. P. Kapoor, the second respondent in W. P. No. 288 of 1979 and appellant in C. A, No. 2104 of 1980 as Director of Health Services on the same day is illegal as he did not satisfy the conditions prescribed in the Rules and he did not have even the requisite qualifying service. Further the post of Director of Health Services must have been filled up from amongst the Health Services Grade-I Officers and not from amongst Specialists, The reversion of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur from the posts of Deputy Directors is illegal :and violative of the conditions of their service as also the provisions of the Constitution of India. The case of Dr. R. M. Bali, the petitioner in W. P. No. 2 of 1980 was that he was appointed as T. B. Officer, T. B. Sanatorium, Mandodhar, a Gazetted Class II post, with effect from 9-4-1955 and he continued to work as such till 28-5-1962. He was, thereafter, appointed as Superintendent in that Sanatorium, a Class I post, and after joining the post he was selected for appointment on a regular basis through the Public Service Commission and he was confirmed in that post, categorised as Category 'D' post and Class I post in the Central Health Services, in 1966. The Medical and Health Department of Himachal Pradesh Government appointed him as Director of Health (T. B.), a Category 'D' post by a Notification dated 1-7-1963. He was inducted into the Central Health Services with effect from 9-9-1966 and included in the initial constitution of that Service and confirmed in that Service on 9-9-1968. But Dr. Grover, who has since retired, and Dr. S. P. Kapoor, who were, respondents 5 and 6 respectively in Writ Petition No. 2 of 1980, were appointed merely on a temporary basis to the Central Health Services with effect from 1-11-1966. The inter se seniority of Dr. R. M. Bali, the petitioner in W. P. No. 2 of 1980 and Dr. Grover and Dr. S. P. Kapoor in the Central Health Services (Specialists' Grade) had to be preserved and could not be disturbed at the time of absorption in the -Himachal Pradesh Health Services having regard to the Punjab Reorganisation Act and 'the protection given to the members of the Punjab Service. In these circumstances, Dr. R. M. Bali prayed for quashing of the seniority list of the cadre of Specialists indicated in the Office Memorandum dated 2-11-1979 (Annexure PX-I containing in the list) and assigning to him Serial No. 1 in the seniority list. He also prayed for other reliefs including declaration of the appointment of Dr. S. P. Kapoor as Director of Health Services. as null and void and for his appointment to that post on the basis of the revised seniority claimed by him.
(3.) THE contention of the Himachal Pradesh Government, the first respondent in W. P. No. 288 of 1979, was that Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were appointed as Deputy Directors of Health Services on ad hoc basis. THE Deputy Director's post is a selection post which cannot be claimed as of right by persons appointed on ad hoc basis by way of stop-gap arrangement. THE incumbent to the post of Secretary to Government, Health and Family Welfare was on leave from 3rd to 9/11/1979 and the Principal Secretary to then Chief Minister was appointed to function in his place as Secretary to Government in the Departmental Promotion Committee by order dated 3-11-1979. THE constitution of the Departmental Promotion Committee was, therefore, perfectly valid. THE annual confidential reports written by Dr. Grover, who was working on ad hoc basis, were not the only reports taken into account by the Departmental Promotion Committee. That Committee did not take into account the reports of Dr. J. C. Sharma about the work and conduct of Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur. THE post of Director of Health Services was manned on an ad hoc basis since the retirement of Dr. Krishan Swarup in December 1973. THE posts of Deputy Director also were manned on an ad hoc basis. THEse ad hoc appointments were necessitated by the absence of the final seniority list which was prepared only on 2-11-1979 and since that impediment was over on 2-11-1979, the Departmental Promotion Committee met on 3-11-1979 and orders of appointment to those selected by that Committee on that date were issued on the same day. THE promptness in making the regular appointments was necessitated by the intention to make the regular appointment as quickly as possible after the preparation of the final seniority list on 2-11-1979. Specialists are necessarily officers possessing post-graduate qualifications while G. D. Os. Class I are, as a rule, only graduates. THErefore, the rule making authority divided the higher posts equally amongst the Officers of the two categories taking all factors into consideration. THE appointment of Dr. S. P. Kapoor, the second respondent in W. P. No. 288 of 1979, as Director of Health Services is valid. Dr. Jiwan Lal and Dr. (Mrs.) Damyanti Kapur were not Deputy Directors of Health Services on the date of selection of Dr. S. P. Kapoor as Director of Health Services and, therefore, their claim for being considered for promotion to that post is wholly untenable having regard to Rule 9 (3) of the Rules, according to which only Deputy Directors could be considered for promotion to the post of Director of Health Services. The contention of the Himachal Pradesh Government, the first respondent in W. P. No. 2 of 1980 was that the post of Superintendent, T. B. Sanatorium held by Dr. R. M. Bali, the petitioner in that Petition, was a junior Class I post until he was appointed to the Specialists' grade in the Central Health Services with effect from 9-9-1966, Dr. Grover and Dr. S. P. Kapoor, respondents 5 and 6 respectively in W. P. No. 2 of 1980, were appointed to the Specialists' grade in the Central Health Services with effect from 1-11-1966, though the Central Government kept the question of seniority open. Dr. R. M. Bali exercised his option to join the Himachal Pradesh Health Service after a copy of the Rules was supplied to him. The final seniority of Dr. R. M. Bali and others was fixed under the provisions of the Rules issued on 10-1-1974. Seniority assigned to Dr. R. M. Bali is strictly in accordance with the provisions of Rule 10 (a) (iii) of the Rules. The words "whichever is earlier" which occurred in the original Rules 10 (a) (i) and 10 (a) (iii) were deleted by the Amendment Rules, 1966. The claim of Dr. R. M. Bali for seniority on the basis of his ad hoc appointment is not tenable.;