S.N Andley, J.:— This judgment will dispose of Civil Writ Petitions Nos. 59 and 76 of 1968. Civil Writ Petition No. 59 of 1968 has been filed by Durga Dass, Dharam Chand and Hari Chand, working as Assistants in Civil Secretariat, Himachal Pradesh. Civil Writ Petition No. 76 of 1968 has been filed by Sansar Chand; Assistant Section Officer Civil Secretariat, Himachal Pradesh. The Petitioners in Civil Writ No. 59 of 1968 were, on October 31, 1966, posted as permanent Assistants in the Punjab Civil Secretariat at Chandigarh while the petitioner in Civil Writ No. 76 of 1968 was posted as a confirmed Assistant Section Officer in the Punjab Civil Secretariat on that date.

2. On the reorganization of the State of Punjab, all the four petitioners in the two writ petitions were provisionally allotted to Himachal Pradesh with effect from November 1, 1966, where the petitioner in Civil Writ No. 76 of 1968 was equated like the petitioners in Civil Writ No. 59 of 1968, to an Assistant in the Himachal Pradesh Civil Secretariat. The contention of Sansar Chand, the petitioner in Civil Writ No. 76 of 1968, was that while he was in the Punjab service, his post of Assistant Section Officer was higher than that of the post of an Assistant and his equation to an Assistant was wrong. Against his equation as an Assistant, Sansar Chand has represented to the Central Government but no aiders on his representation have so far been passed. Therefore, for purposes of disposing of the contentions raised in these Writ Petitions, Sansar Chand, petitioner in Civil Writ 76 of 1968, has to be treated as an Assistant. The Punjab Re-organization Act, 1966 came into force on November 1, 1966, and it is with effect from this date that the petitioners were required, under the provisions of section 82 of the said Act, to serve provisionally in connection with the affairs of the Union Territory of Himanchal Pradesh. Final allotment of the services of the petitioners and others who were so allotted has not yet been made.

3. While they were serving the State of Punjab the petitioners were governed by the Punjab Civil Secretariat (State Service Class II) Rules, 1963. It is provided by sub-section (6) of section 82 of the Punjab Reorganization Act that:—

“Nothing in this section shall be deemed to affect on or after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State: Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.”

4. It was the petitioner's case that such approval had not been granted by the Central Government and, therefore, they continued to be governed by the aforesaid Punjab Rules.

5. A provisional joint seniority list was prepared on March 28, 1968, by the Himachal Pradesh Administration as required by the Central Government by their letter, dated February 14, 1967. In this list the comparative provisional Joint seniority of the parties concerned is shown as under:—

Serial No. 10 Durga Das Petitioner No. 1 Serial No. 13 S.S Bragta Respondent No. 18 Serial No. 18 Parbhu Prabhakar Respondent No. 19 Serial No. 27 Het Ram Paul Respondent No. 20 Serial No. 30 M.L Puri Respondent No. 6 Serial No. 32 Dharam Chand Petitioner No. 2 Serial No. 33 Hari Chand Petitioner No. 3 Serial No. 34 Sada Ram Sharma Respondent No. 7 Serial No. 35 Rajendra Paul Chaudhary Respondent No. 8 Serial No. 37 Jagat Singh Respondent No. 9 Serial No. 40 A.R Dwan Respondent No. 10 Serial No. 41 Anand Swarup Respondent No. 11 Serial No. 47 K.C Jain Respondent No. 12 Serial No. 48 Karam Chand Thakur Respondent No. 13

Serial No. 61 Bhawan Chand Gupta Respondent No. 15 Serial No. 69 Bhupinder Singh Respondent No. 16 Serial No. 75 Sansar Chand Petitioner in C.W.P No. 76 of 1968. Serial No. 82 D.N Pardeshi Respondent No. 17

Madan Lal Gupta Respondent No. 14 is shown at serial No. 5 of the provisional joint seniority list of Senior Scale Stenographers.

R.C Tomar Respondent No. 21 is shown at serial no. 7 of the provisional joint seniority list of Senior Scale Stenographers.

6. The petitioners allege that to fill up certain posts of Superintendents which had fallen vacant, respondent no. 3 (Chief Secretary, Himachal Pradesh) effected promotions to the posts of Superintendents of respondents Nos. 6, 9, 10, 11, 17, 19, and 20 who belonged to pre-reorganization Himachal Pradesh services by his order, dated February 13, 1967, without considering the cases of Punjab employees who had provisionally been allotted to Himachal Pradesh. These promotions were canceled by the Central Government upon representations being made. Then on March 8, 1968, respondent No. 3 appointed respondents Nos. 9, 13 and 17 to officiate as Superintendents in the Secretariat to work as Private Secretaries to three Deputy Ministers with retrospective effect from various dates in 1967 and these three respondents were to hold their posts as Superintendents so long as their services were required by the three Deputy Ministers. With regard to these promotions, it is alleged that they had been effected in utter disregard of service rules. Thereafter, a Departmental Promotion Committee consisting of the Chief Secretary (respondent No. 3); Judicial Secretary (respondent No. 4) and Under Secretary, Secretariat Administration Department (respondent No. 5) promoted respondents 6 to 20 as Superintendents by an order dated March 28, 1968, which was the date upon which the provisional joint seniority list had been published. These promotions were made under Rule 7(iv) of the Himachal Pradesh Secretariat Class III. Service (Recruitment Promotion and Certain Conditions of Service) Rules, 1962. As to respondent No. 21, it is alleged that he was promoted even, without selection by the aforesaid Departmental Promotion Committee. As will be seen from the comparative seniority given herein before, petitioner No. 1 in Civil Writ 59 of 1968 was the senior most and petitioners nos. 2 and 3 were senior to respondents nos. 7 to 13 and 15 to 17, while the petitioner in Civil Writ 76 of 1968 was senior only to respondent No. 17.

7. The promotions of respondents Nos. 6 to 21, hereinafter referred to as “the respondent employees”, as Superintendents by the aforesaid order, dated March 28, 1968, have been challenged on various grounds. The first ground is that the petitioners continued to be governed by the Punjab Civil Secretariat (State Service Class II) Rules, 1963 where it is provided by Rule 8 that appointment to the post of Superintendent was to be by promotion on the basis of seniority-cum-merit from amongst Assistant Section Officers (like the petitioner in Civil Writ 76 of 1968) and such Deputy Superintendents, Assistants-in-charge and Assistants (like petitioners in Civil Writ 59 of 1968) as are members of the Punjab Civil Secretariat State Service, Class II with a specified minimum experience and promotion of such persons was to be made strictly on the basis of seniority-cum-merit. It is contended that the impugned promotion of the respondent employees under Rule 7(iv) of the said Himachal Pradesh Service Rules (By selection) was violative of the petitioners' right to promotion in accordance with the said Punjab Service Rules which they carried with them upon their allotment to Himachal Pradesh. In this connection it was contended that the rule of promotion “by seniority-cum-merit” means “by seniority-cum-fitness” and that so long as an employee is not unfit to hold a higher post he is entitled to promotion by virtue of his seniority. The second contention was that assuming that the petitioners were also governed by the Himachal Pradesh Service Rules aforesaid, Rule 7(iv) thereof was violative of Articles 14 and 16 of the Constitution as, in the absence of the specification of the method of selection, the actual selection was left to the unguided and arbitrary discretion of the members of the Departmental Promotion Committee. The third contention was that the promotions of respondents 9, 13, 17 and 21 were mala fide as, in making these promotions, the members of the Departmental Promotion Committee; were guided by extraneous considerations and the behests of three Deputy Ministers.

8. Written statements to the writ petitions were filed by the respondents. The main written-statement was filed by respondent No. 3. In the written-statement it was contended that the petitioners and other employees transferred from Punjab were governed by the Himachal Pradesh Service Rules and not by the Punjab Service Rules; that Rule 7(iv) of the Himachal Pradesh Service Rules was not hit by Article 14 or Article 16 of the Constitution and the promotions of respondents 9, 13 and 17 were bonafide as they were made after taking into consideration their previous record of service as per instructions and directions of the Central Government in this behalf. As to respondent No. 21 it was averred that he had been promoted in the vacancy reserved for scheduled castes.

9. After the filing of the return by the respondents an application, Civil Miscellaneous petition No. 395 of 1968, was filed by the petitioners for a direction to respondents 1 to 5 to produce:—

(a) Proceedings of the Departmental Promotion Committee;

(b) Service records of petitioners and respondents Nos. 6 to 21;

(c) Government of India, Ministry of Home Affairs letter No. F. 1/4/55-H.P.S, dated May 15, 1951.

10. An affidavit was filed by the then Chief Secretary to the Government of Himachal Predesh, claiming privilege in respect of these documents under Sections 123 and 124 of the Indian Evidence Act, 1872. This application was disposed of by Deshpande, J. on October 24, 1968. The claim for privilege with respect to the documents mentioned in (a) and (b) hereinbefore was upheld and no order was made with regard to the said letter dated May 15, 1951, upon the statement of the counsel for the respondents “that the letter is not dated 15th May, 1951, but is dated 16th May, 1957 and has already been disclosed as Annexure R-19 to the written statement of the Government”. However during the course of the hearing before us, learned counsel for respondents 1 to 5 waived the privilege granted to a certain extent and alongwith an affidavit sworn by respondent No. 5 on November 26, 1968, filed copies of the ‘Select List’ prepared by the Departmental Promotion Committee containing the rating of the petitioners and other Assistants. He also waived privilege in respect of the List of all the eligible employees who were in the field of choice which had been submitted to the Departmental Promotion Committee and filed this List in original.

11. I may also mention another development on third day of hearing and that is that respondents 1 to 5 produced a notification dated November 4, 1968, of the Government of India in the Ministry of Home Affairs in wherein the Himachal Pradesh Allotted Government Servants (Conditions of Service) Rules, 1968, are published and it is provided that these Rules shall be deemed to have come into force on November 1, 1966. By these Rules it has been provided that the Punjab employees allotted to Himachal Pradesh are also to be governed by the same Rules which govern the pre-reorganization employees of the Himachal Pradesh Administration. This notification is in these terms:—

“No. 8/7/67-HMT”

GOVERNMENT OF INDIA

MINISTRY OF HOME AFFAIRS

4th November, 1968

New Delhi-1, the ---------

13th Kartika, 1890.

Notification

12. GSR…In exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President hereby makes the following rules regulating the conditions of service of persons allotted under the provisions of section 82 of the Punjab Re-organization Act, 1966 (31 of 1966) to serve in connection with the affairs of the Union in relation to the territory transferred to the Union Territory of Himachal Pradesh under Section 5 of the said Act, namely:—

1. Short title and commencement.—(1) These Rules may be called the Himachal Pradesh Allotted Government Servants (Conditions of Service) Rules, 1968.

(2) They shall be deemed to have come into force on the 1st day of November, 1966

(2) Conditions of service applicable to allotted Government Servants.— The rules relating to conditions of service applicable, from time to time, to those persons who, immediately before the commencement of these rules, were employees of the Himachal Pradesh Administration, shall apply to every person who, immediately before such Government, was serving in connection with the affairs of the former State of Punjab and who, on or after such commencement, has been allotted under the provisions of sub-section (1) or sub-section (2) of Section 82 of the Punjab Re-organization Act, 1966 (31 of 1966).

E. 8/7/67-HMT.

Sd/-R.C Gupta.

Under Secretary to the Government of India.

13. These Rules have been produced to meet the first contention of the petitioners that in absence of any provision in that behalf, the petitioners and other Punjab employees continued to be governed by the Punjab Service Rules which, as stated above, provided, inter alia, for promotion on the basis of seniority-cum-me it. It, therefore, became necessary for the petitioners to challenge the validity of this notification.

14. In relation to the first contention as to the continued application of the Punjab Service Rules to the petitioners, I will first deal with the validity of this notification. The first contention of the petitioners is that inasmuch as the retrospective effect given to this notification affects their vested rights, it is illegal and ultra vires. There is no substance in this contention. Retrospective law always affects vested rights and the Legislature has always been held to have the power to legislate retrospectively so as to affect vested rights and that is the position with regard to Rules made by the President in exercise of his powers under Article 309 of the Constitution as will be clear from the judgment of the Supreme Court, dated March 27, 1968 in Writ Petitions Nos. 96 and 165 of 1967. ‘B.S Vadera, etc. v. Union of India’ where it has been held that rules made by the President under Article 309 of the Constitution are to have full effect both prospectively and retrospectively. This is what the Supreme Court has observed:—

“It is also significant to note that the proviso to Article 309, clearly lays down that ‘any rules so made shall’ ‘have effect, subject to the provisions of any such Act’. The clear and unambiguous expressions, used in the Constitution, must be given their full and unrestricted meaning, unless hedged-in by my limitations. The rules, which have to be ‘subject to the provisions of the Constitution’, shall have effect, subject to the provisions of any such Act. That is, if the appropriate Legislature has passed an Act, under Articles 309, the rules, framed under the proviso, will have effect, subject to that Act; but in the absence of any Act, of the appropriate Legislature, on the matter, in our opinion, the rules, made by the President, or by such person as he may direct, are to have full effect, both prospectively and, retrospectively, Apart from the limitations, pointed out above, there is none other, imposed by the proviso to Article 309, regarding the ambit of the operation of such rules in other words, the rules, unless they can be impeached on grounds such as breach of Part III, or any other Constitutional provision must be enforced, if made by the appropriate authority.”

15. In view of the decision, it is no longer arguable that the petitioners acquired a vested right in and continue to be governed by the Punjab Service Rules.

16. The next attack is that this notification has not been and does not purport to have been signed by the President and it has in fact been signed by an Under Secretary to the Government of India. Therefore it is contended, that it cannot be taken to be an order made by the President in exercise of the powers conferred upon him by Article 309 of the Constitution; the mere fact that the maker of these rules is stated to be the President will not make any difference unless it is proved that the President did actually sign these rules and that with respect to Himachal Pradesh the President is a persona designate and all acts done by him must be done by him personally under Article 239 of the Constitution which provides:—

“239(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit., through in administrator to be appointed by him with such designation as he may specify.

(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the Administrator of an adjoining Union Territory, and where a Governor is so appointed he shall exercise his functions as such administrator independently of his Council of Ministers.”

17. The respondents, on the other hand, argue that by reason of clause (2) of Article 77 of the Constitution and inasmuch as the rules have been authenticated by the appropriate person, it is not open to the petitioners to urge that the said older making the said Rules of 1968 is not an order or instrument made or executed by the President. Article 77 of the Constitution of India is in these terms:—

“77. (1) All executive action of the Government of India shall be expressed to be taken in the name of the President.

(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.”

18. The petitioners replied to this argument by saying that the constitutional status of a Union Territory being analogus to that of a State, the President while administering the said territory acts in a capacity entirely different from his capacity as the executive head of the Union under Article 53 of the Constitution and, therefore, the provisions of clause (2) of Article 77 cannot apply to the said notification which has been issued by the President in his personal capacity as the Administrator for the Union Territory of Himachal Pradesh. This identical point was dealt with by a Division Bench of this Court in the decision dated August 16, 1967, in Civil Writ Petition No. 14 of 1967 (2Jai Chand v. Union of India). The conclusion arrived at by the Division, Bench after discussing the constitutional position of Himachal Pradesh is thus stated:—

“The constitutional status of a Union Territory, as we understand it, to be, is that although the Union Territory has to some extent been approximated to the State (Originally Part A State) it is not assimilated to the State and the over-riding power, legislative and executive, remains with the Parliament and Union Government, respectively. The administration of the Union Territory of Himachal Pradesh for that matter, of the Union Territory of Delhi as well, is by virtue of the provisions contained in Part VIII of the Constitution vested in the President acting to such extent as he thinks fit through an administrator. It may be that in doing so the President does not function as the executive head of the Central Government as has been laid down by their Lordships of the Supreme Court in Satya Dev's case but there is no denying the fact that the administration of the said territory is non-the-less an affair of the Union.”

19. Agreeing as we do with this conclusion, Article 77 of the Constitution of India immediately comes into play and by virtue of the provisions contained in clause (2) of this Article, it is not open to the petitioners to challenge the notification on the ground that it has not been signed by the President. Therefore, it has to be held that the petitioners will be governed as from November 1, 1966, by the Service Rules which were applicable to those persons who were employees of the Himachal Pradesh Administration prior to the coming into force of the Punjab Reorganization Act, 1966.

20. These rules are the Himachal Pradesh Secretariat Class III Service (Recruitment, Promotion and certain Conditions of Service) Rules, 1962 Rule 7 is in these terms:

“Posts in the service shall be filled either by promotion or by direct appointment in the following manner:—

(i) Junior Clerks: By transfer of a person already in the service of the Union or by direct recruitment. “Class IV personnel of Himachal Pradesh Secretariat will also be eligible as direct recruits provided they fulfil the qualifications prescribed in Rule 6 and have put in not less than five years service in a Central Government of Himachal Pradesh Government Office and also have a good record of Service.”

incorporated,— vide Notification No. SAD-25-233/58, dated 9-3-1964.

(ii) Senior Clerks: ⅔rd of the total number of posts will be filled by promotion on the basis of seniority subject to the rejection of unfit out of the Junior Clerks and the remaining ⅓rd posts will be tilled by direct or recruitment through competitive examination Serving Junior Clerks, will however be eligible for competition with direct recruiters irrespective of their length of “service and qualifications.

(iii) Assistants: 75 per cent of the posts will be filled by promotion on the basis of seniority subject to rejection of unfit out of Senior Clerks and Junior Scale Stenographers (percentage roughly in accordance with the ratio between the members of Senior Clerks and Senior Scale Stenographers) who have served at least for five years in that capacity, and 25 per cent of the posts by direct recruitment on the basis of a competitive examination. Serving Senior Clerks and Junior Scale Stenographers will, however, be eligible for competition with direct recruiters irrespective of their length of service and qualifications.

(iv) Superintendents: By selection through the Departmental Promotion Committee cut of Assistants and Senior Scale Stenographers (percentage roughly in accordance with the ratio between the members of Assistants and Senior Scale Stenographers) who have normally put in 6 years service as Assistants or Senior Scale Stenographers (officiating or confirmed).

(v) Senior Scale Stenographere: ⅔rd of the posts shall be filled by promotion on the basis of seniority subject to the rejection of unfit out of the Junior Scale Stenographers who have served at least for three years in that capacity and ⅓rd by direct recruitment. Serving Junior Scale Stenographers will, however, be eligible for competition with the direct recruitees irrespective of their length of Service and qualifications.

(vi) Junior Scale Stenographers: By direct recruitment on the basis of competitive examination.

(vii) Clerk of Court.—By transfer from among the Tehsildars or by promotion from amongst Naib-Tehsildars.

(viii) Stamp Auditor: By selection through the Departmental Promotion Committee from amongst Naib-Tehsildars, Sadar Kanungos or of any other official from amongst the service in the administration who possesses sufficient experience of law relating to stamps: or by direct recruitment.

(ix) Head Cashier: By selection from amongst the Senior Clerks and Assistants.

(x) Librarian: By direct recruitment or by selection from amongst the services in the Administration.

(xi) Staff Car Drivers: By transfer of a person already in the service of the Union or by direct recruitment.

(xii) Book Binder: By selection from amongst the Daftries or by transfer of a person already in the service of the Union or by direct recruitment.

“Provided that (i) in the case of appointment by direct recruitment, 23 per cent and 5 per cent and (ii) in the case of appointment to the selection post of Superintendent by promotion either by selection or on the result of a competitive examination limited to departmental candidates in the grade service to which there is no direct recruitment whatever, 12½ per cent and 5 per cent of the vacancies shall be filled up from the candidates/persons belonging to Scheduled Castes and Scheduled Tribes, respectively, subject, however, to the prescribed minimum qualifications/standard being satisfied by them. In the second case above where the selection is to be made from persons of more than one category, viz., Assistants and Senior Scale Stenographers, according to the ratio fixed under these rules, the number of posts to be filled by selection from amongst persons of each category (Assistants and Senior Scale Stenographers) shall first be determined separately and reservations for Scheduled Castes and Scheduled Tribes shall also be made separately in each category. If in one category, a reserved post cannot be filled owing to non-availability of suitable candidate of the concerned community in that category, the reserved post shall be de-reserved and filled from the general selection list for that category. The vacancy so de-reserved shall be carried forward for two susequent recruitment years, as usual:

Provided further that 10 per cent of the permanent vacancies shall be reserved for ex-seryicemen for a period of two years”.

(Substituted,— vide Notification No. SAD-1/535/57-II, dated 5-9-1967.)

Provided further that the vacancies reserved for outside candidates shall be intimated to the Heads of Departments or Heads of Offices, as the case may be, and they shall be asked to recommend names of suitable candidates working in their offices; otherwise vacancies shall be notified to the Employment Exchanges in Himachal Pradesh or will be advertised.”

21. It is contended that while in the case of categories of employees other than Superintendents the method of appointment and promotion has been specified, all that is stated with respect to “Superintendents” is that appointments to these posts will be “by selection” through the Departmental Promotion Committee out of Assistants and Senior Scale Stenographers in the ratio specified who have put in the specified years of service. Although the field of choice has been specified, there is no guidance, it is contended, to the Departmental Promotion Committee for selection of persons for the post of Superintendents. Therefore, it is urged that the power that has been given to the Departmental Promotion Committee is unguided and arbitrary and it will be open to the Departmental Promotion Committee to adopt any such method of promotion which they may decide upon at the time of selection or from to time. The method may not be uniform and may be different from the previous method adopted. For example, in one year selection may be on the basis of merit alone: in the next year on the basis of merit-cum-seniority; in the third year on the basis of seniority-cum merit; in the fourth year on the basis of fitness alone; in the fifth year on the basis of a written test; in the sixth year on the basis of viva voce and so on and so forth. It is contended that if the Departmental Promotion Committee has this unguided power, the employees are likely to suffer with the changes in the method of selection. I do not think there is any substance in this contention. If any of the employees suffer by changes in method of selection from time to time, they can, if they are entitled to do so, challenge the particular method of selection which adversely affects them. It is open to the rule making authority to change the rules from time to time and in doing so it is empowered to change the method of selection according to the exigencies of service. The question that faces us is whether the method mployed in the present case is or is not a proper method.

22. The method alleged to have been adopted by the Departmental Promotion Committee in fact is stated in paragraph 6 of the counter-affidavit of respondent No. 3 and the method is:—

1. The posts of Superintendents in the Himachal Pradesh Secretariat, being selection posts, are filled upon the basis of merit-cum-seniority from out of the approved panel drawn by the Departmental Promotion Committee of the Secretariat Administration Department end this panel is required to be drawn up in terms of the instructions issued by the Government of India, Ministry of Home Affairs in their letter, dated 17-2-55 annually.

2. Provisional Joint Seniority lists of Assistants and Senior Scale Stenographers were drawn up on the continued length of service whether permanent or temporary—in the equated grade on March 28, 1968.

3. In all, the Departmental Promotion Committee considered the cases of 96 eligible persons including the petitioners and categorized them ‘Outstanding’, “Very Good” and ‘Good’ as per instructions of the Government of India, Ministry of Home Affairs conveyed by letter, dated May 16, 1957.

4. The Departmental Promotion Committee in its meetings held on 6th, 20th and 23rd March, 1968 considered the cases of these 96 eligible candidates; scrutinized their service record and decided that the promotions be made firstly but of the ‘Outstanding’ category, then from the ‘Very Good’ category and thereafter from the ‘Good’ category 12 persons were placed in the ‘Outstanding’ category; 35 in the ‘Very Good’ category; 47 in the ‘Good’ category and 2 were rated as ‘Fair.’

5. The Departmental Promotion Committee did not consider that any of the petitioners rated as ‘Outstanding’. Petitioner No. 2 was rated ‘Very Good’; petitioners 1 and 3 were placed in the ‘Good’ category and the petitioner in Civil Writ Petition No. 76 of 1968 was rated as ‘Very Good’.

6. It was after screening the service record that the Departmental Promotion Committee recommended the cases of respondents 6 to 20 for promotion as Superintendents.

7. Respondent No. 21 (R.C Tomar) was recommended by the Departmental Promotion Committe against the quota reserved for Scheduled Caste candidates.

23. Although in the counter-affidavit it was stated that 12 of the respondent employees were rated ‘Outstanding’ and 3 were rated ‘Very Good’, it was not disclosed as to which of the respondent employees had been rated ‘Outstanding’ and which ‘Very Good’. Since admittedly petitioner No. 2 in Civil Writ Petition No. 59 of 1968 and the petitioner in Civil Writ Petition No. 76 of 1968 were rated in the ‘Very Good’ category, learned counsel for respondents 1 to 6 was asked whether these two persons were senior to any of the respondent employees who had been rated ‘Very Good.’ It was when the learned counsel was confronted with this situation that he waived the privilege with respect to the panel of 96 employees which had been submitted to the Departmental Promotion Committee in which the different ratings had been mentioned by it. Upon a perusal of this panel we are satisfied that none of the respondent employees who were placed in the ‘Very Good’ category was junior either to petitioner No. 2 in Civil Writ Petition No. 59 of 1968 or the petitioner in Civil Writ Petition No. 76 of 1968.

24. The Counsel for the petitioners then attacked the letter, dated May 16, 1957, of the Government of India in the Ministry of Home Affairs on the ground that the instructions contained in this letter would have no validity as they had not been issued by the President or the Lieutenant-Governor as required by Article 239 of the Constitution. This objection has no validity because as already held by us the Union Territory of Himachal Pradesh is a centrally administered area and in respect of this territory it is the Central Government which acts and is equated to the President.

25. It was next contended that the Departmental Promotion Committee did not exercise its own judgment but followed instructions as contained in this letter and, therefore, the method of selection could not be said to have been devised by the Departmental Promotion Committee itself. I do not find any substance in this contention also. Assuming that the Departmental Promotion Committee followed instructions as contained in this letter and did not exercise its own judgment to devise a method for selection, all that has to be seen is whether the method adopted was a proper or good method which considered the cases of all eligible candidates according to one standard. As to whether the Departmental Promotion Committee actually followed the method prescribed in this letter is another question with which I will deal later.

26. Inter alia.—This letter says:—

“The remaining officers should be classified as ‘Outstanding’. ‘Very Good’ and ‘Good’ on the basis of merit as determined by their respectire records of service. The ‘Select List’ should then be prepared by placing the names in the order of these three categories, without disturbing the seniority inter se within each category.”

27. The method suggested is not only proper but, if applied fairly and honestly, it is fair to all the eligibles concerned because the records of service, that to say, the remarks earned by the employees during their past service have to be taken into consideration and it cannot be expected that such remarks would be interested or biased.

28. Then, I come to the main argument that Rule 7(iv) of the Himachal Pradesh Service Rules by merely using the words “by selection” do not afford any guidance and it is open to the members of Departmental Promotion Committee to select any person or persons of their choice by adopting suitable methods. This argument was countered by the respondents relying upon the decision of the Supreme Court in 3Sant Ram Sharma v. State of Rajasthan, A.I.R, 1967 Supreme Court, 1910, Sant Ram Sharma's case was that he was the Senior most officer in Rajasthan to be promoted to the post of Inspector-General of Police and he filed a writ Petition under Article 32 of the Constitution for quashing two orders of the State of Rajasthan whereby Hanuman Sharma had been promoted as Inspector-General of Police and Sultan Singh had been promoted as Additional Inspector-General of Police superseding Sart Ram Sharma. The posts of Inspector-General of Police and Additional Inspector-General of Police were selection grade posts. No other guidance was given in the Rules as to the method of selection. Upon the more fact that they were described as selection grade posts, it was observed:—

“If these three posts are selection posts it is manifest that the State of Rajasthan is not bound to promote the petitioner merely because he stood first in the Gradation List. The circumstance that these posts are classed as ‘Selection Grade Posts’ itself suggests that promotion to these posts is not automatic being made only on the basis of ranking in the Gradation List but the question of merit enters in promotion to selection posts. In our opinion, the respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection post and that it is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, available.”

29. It is, therefore, implicit in the very words “by selection” as used in Rule 7(iv) of the Himachal Pradesh Service Rules that the selection is to be on merit and seniority is to be taken into consideration if there is equality of merit. The other contention raised by Sant Ram Sharma was that if the executive Government is held to have powers to make appointments and lay down conditions of service without making rules in that behalf under the proviso to Article 309 of the Constitution there will be a violation of Articles 14 and 16 because the appointments would be arbitrary and capricious. This argument was also repelled by the following observations:—

“In our view, there is no substance in this contention of the petitioner. If the State of Rajasthan had considered the case of the petitioner along with the other eligible candidates before appointments to the selection posts there would be no breach of the provisions of Article 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotion to those selection posts were actually made.”

30. Another argument of the petitioners was that the said letter, dated May 16, 1957, can at best be said to contain directions or administrative instructions which cannot be equated to rules which are required to be made under Article 309 of the Constitution and such directions or administrative instructions cannot, therefore, have any binding force or effect. This argument is also met by the decision in Sant Ram Sharma's case by the following observations:—

“It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede, statutory Rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.”

31. It is then urged that if in fact the selection by the Departmental Promotion Committee has been arbitrary notwithstanding the fact that a proper method of selection was pretended to be followed, then even if the petitioners are not entitled to any relief under Article 16 of the Constitution, they can claim a violation of Article 14. In my view this contention is available to the petitioners because this aspect of the matter is not concluded by the decision of the Supreme Court in Sant Ram Sharma's case. All that Sant Ram Sharma had contended was that he was, by reason of his seniority, entitled as of right to appointment to the selection post and that his case had not been considered. On the facts as disclosed by the State of Rajasthan, the Supreme Court repelled both these contentions. Since this contention of the petitioners is somewhat connected with allegations of mala fide, favoritism and obedience to the behests of the Deputy Mininsters, I will deal with it in connection with mala fides.

32. The allegations of mala fides are confined with respect to respondents Nos. 9, 13 and 17 who were promoted as Superintendents long before the meeting of the Departmental Promotion Committee so that they could be the Private Secretaries of three Deputy Ministers. It is alleged that (a) the Himachal Pradesh Administration is not competent to create the posts of Private Secretaries to Deputy Ministers as in Punjab Deputy Ministers are not provided with Private Secretaries; (b) respondents Nos. 9, 13 and 17 were posted against these posts in their own capacity and scales in the first instance but subsequently they were promoted in a higher scale by order, dated March 8, 1968, with retrospective effect; (c) the promotions of respondents Nos. 9, 13 and 17 were made in flagrant violation of the rules because they were favorites of political persons and had been promoted without recourse to the departmental rules merely because they had been selected by Deputy Ministers to act as their Private Secretaries. Allegations of mala fides have been denied by the respondents who in justification of the appointments of respondents Nos. 9, 13 and 17 have said that these appointments were on an ad hoc basis in the exigencies of service and had been made after considering the record of these respondents. The next all gation of mala fides is with respect to respondent No. 21 and it is alleged that he was promoted as a Superintendent in 1967 in utter disregard of Service Rules merely because he happened to be working at the relevant time as Personal Assistant to respondent No. 4, a member of the Departmental Promotion Committee. Respondent No. 4 has filed a counter-affidavit and has denied the allegations of mala fides Mr. Kaushal, learned counsel for the respondents, described these allegations as wild and irresponsible. The fact remains that respondents Nos. 9, 13, 17 and 21 were appointed as Superintendents and/or as Private Secretaries of three Deputy Ministers without any recourse having been had to any Service Rules with regard to promotion and even though they were very much junior in the seniority list to the petitioners and others. The petitioners were in the position of people who were high in the seniority list and yet they saw respondents Nos. 9, 13, 17 and 21 being promoted as Superintendents/Private Secretaries without any selection as contemplated by the Himachal Pradesh Service Rules. In this situation. I am unable to describe the allegations as wild and irresponsible. Yet, I am concerned with the proof of mala fides and, in view of the explanation tendered on behalf of the respondents in their written statements or counter-affidavits that these appointments were on an ad hoc basis in the exigencies of the service, I cannot come to the conclusion that these allegations have been proved in law.

33. I then come to consideration of the contention that the actual selection was arbitrary. The respondents have asserted that they have followed the procedure which is indicated in the letter of the Central Government dated May 16, 1957. The relevant portion of this letter has been quoted by me earlier, but it is necessary to set out the letter in extenso. This letter says that:—

“1. Appointment to selection posts and selection grades should be made on the basis of merit, with regard to seniority only to the extent indicated below.

2. The Departmental Promotion Committee or other selecting authority should first decide the field of choice, i.e, the number of eligible officers awaiting promotion who should be considered for inclusion in the “select list”, provided, however, that an officer of outstanding merit, may be included in the list of eligibles even if he is outside the normal field of choice.

(Note:— the field of choice, where ever possible should extend to five or six times the number of vacancies expected within a year.)

3. From amongst such officers those who are considered unfit far promotion should be excluded.

4. The remaining officers should be classified as ‘outstanding’, ‘Very Good’ and ‘good’ on the basis of merit, as determined by their respective records of service. The ‘select list’ should then be prepared by placing the names in the order of these three categories, without disturbing the seniority inter se within each category.

5. Promotion should normally be made from the ‘selection list’ in the order in which the names are finally arranged.

6. The ‘select list’ should be periodically reviewed. The names of those officers who have already been promoted (otherwise than on a local or purely temporary basis) and continue to officiate should be removed from the list and the rest of the names along with others who may now be included in the field of choice should be considered for the ‘select list’ for the subsequent period.”

34. The field of choice as contemplated by clause (2) is provided for by Rule 7(iv) of the Himachal Pradesh Service Rules and that is that appointment to the post of Superintendent will be out of Assistants and Senior Scale Stenographers who have normally put in six years service as Assistants or Senior Scale Stenographers. In accordance with the note to clause (2), a panel of 96 names was submitted by various departments to the Departmental Promotion Committee. The function of the Department I Promotion Committee was to classify these persons in accordance with clause (4) as ‘outstanding’, ‘very good’ and ‘good’ on the basis of merit as determined by their respective records of service. Therefore, the Departmental Promotion Committee had to arrive at their decision on the basis of the previous record of service. It was for this reason that the panel of names submitted contained also the remarks that had been earned by the 96 eligibles since 1962-1963. In so far as the petitioners in both the petitions and the respondent employees are concerned, the following table will indicate their serial number in the panel; their names; the remarks earned by them in 1962-1963, 1963-1964, 1964-1965, 1965-1966 and 1966-1967 and the remarks by the Departmental Promotion Committee:—

No. Name 1662-1663 1663-1664 1664-1665 1665-1666 1666-1667 Remarks by Departmental Promotion Commitee In the panel of Assistants. 7. Darga Dass (Petitioner No. 1) VG G VG G G G 9. S.S Bragta (Respondent No. 18) G VG G VG VG VG 12. Prabru Prabhakar (Respondent No. 19) VG VG VG VG VG VG 17. Het Ram Paul (Respondent No. 20) G VG VG VG VG VG 20. M.L Puri (Respondent No. 6) VG OS OS OS OS OS 21. Dharam Chand (Petitioner No. 2) G G VG VG VG VG 22. Hari Chand (Petitioner No. 3) G G G G … G 23. Sada Ram Sharma (Respondent No. 7) VG VG VG OS VG OS 24. Rajendra Paul Chaudhary (Respondent No. 8) VG VG OS OS OS OS 26. Jagat Singh (Respondent No. 9) VG VG OS OS OS OS 27. A.R Dewan (Respondent No. 10) VG VG OS OS G OS 28. Anand Swamp (Respondent No. 11) VG OS OS OS OS OS 32. H.C Jain (Respondent No. 12) VG OS OS G OS OS 33. Karam Chand Thakur (Respondent No. 13) VG VG VG OS … OS 45. Bhawan Chand Gupta (Respondent No. (15) OS OS VG VG VG OS 53. Bhupinder Singh (Respondent No. 16) VG VG OS OS OS OS 59. Sansar Chand (Petitioner in Writ No. 76 of 1968) VG VG G G … VG 66. D.N Pardeshi (Respondent No. 17) Serial Number in the panel of Senior Scale Stenographers VG VG VG OS OS OS 3. Madan Lal Gupta (Respondent No. 14) OS OS OS OS VG OS Note:— ‘OS’ — Outstanding ‘VG’ — Very Good ‘G’ — Good.

35. I have tried to ascertain from this table the method adopted by the Departmental Promotion Committee as to whether their remark of ‘OS’ or ‘VG’ was given on the basis of one ‘OS’ remark during these various years or several ‘OS’ remarks during the various years or the last ‘OS’ remark for the year 1966-1967 but there does not appear to me to be any method in giving the remarks by the Departmental Promotion Committee. Sada Ram Sharma (Serial No. 23) and Kaiarn Chand Thaknr (Serial No. 33) were given only one ‘OS’ remark during the year 1962 to 1967 and yet they have been placed in the ‘OS’ category by the Departmental Promotion Committee. Bhawan Chand Gupta (Serial No. 45) was given two ‘OS’ remarks in the years 1962-1963 and 1963-1964 but none in the subsequent years and yet he has been given the ‘OS’ category by the Departmental Promotion Committee.

36. ‘Outstanding’ means prominent; conspicuous; that which stands out. Inasmuch as the previous remarks were to be the basis of categorization by the Departmental Promotion Committee, I should have thought that only such people will be placed in this category whose performance had been outstanding throughout the period 1962 to 1967. It could also be that if an employee has been ‘GOOD’ or ‘Very Good’ in the earlier years and is ‘Outstanding’ in the later years, he might justifiably be categorized as ‘Outstanding’ because it would indicate that he has been making efforts to put in his best. From the above table, it will be clear that no understandable method has been adopted by the Departmental Promotion Committee. Although Sada Ram Sharma and Karam Chand Thakur aforesaid who earned only one ‘OS’ remark have been placed in the ‘OS’ category by the Departmental Promotion Committee, yet another eligible Devi Singh Negi, who had also earned one ‘OS’ category but in the ‘VG’ category. The particulars of Devi Singh Negi are given below:—

S. No. Name 1962-1963 1963-1964 1964-1965 1965-1966 1966-1967 Remarks by Departmental Promotion Committee 31 Devi Singh Negi VG VG VG OS VG VG

37. If Sada Ram Sharma and Karam Chand Thakur were placed in ‘OS’ category, I see no reason why Devi Singh Negi should not have been placed in ‘OS’ category when posts had first to be filled from out of the ‘OS’ category. This clearly indicates that the Departmental Promotion Committee, far from following the directions contained in the aforesaid letter, dated May 16, 1957, categorised according to their own notions which cannot be justified on any reasonable grounds it is true that Devi Singh Negi is not a party to these petitions. But his case is indicative of the approach of the Departmental Promotion Committee and I cannot come to the conclusion that the selection by the Departmental Promotion Committee was in accordance with the said letter, dated May 16, 1957, or was reasonable or is justifiable by any reasonable standards. I am, therefore, driven to the conclusion that the categorization by the Departmental Promotion Committee was arbitrary. The selection by the Departmental Promotion Committee has, therefore, to be quashed.

38. The result of quashing the selection of the Departmental Promotion Committee will result in uprooting of respondents 6 to 21 but I remind myself of the observations of Hidayatulla, J. (as his Lordship then was) in the decision of the Supreme Court reported in (1965) I Supreme Court Reports 360 (C. Channbasavaiah v. State of Mysore) where his Lordship has concluded his judgment with these words:—

“It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing. If any blame for the inconvenience is to be placed it certainly cannot be placed upon the petitioning candidates, the candidates whom this order displaces or this Court.”

39. Being fortified by these observations and having come to the conclusion that the actual selection by the Departmental Promotion Committee was arbitrary, it must be held that such selection was violative of Article 14 of the Constitution.

40. In the result the aforesaid order, dated March 28, 1968, is quashed and is set aside. The petitioners in both the petitions will have their costs. Counsel fee in each petition is fixed at Rs. 250/-.

41. The original list of 96 persons submitted to the Departmental Promotion Committee will be retained in this Court but respondents Nos. 1 to 5 will be at liberty to take it back upon filing photostat copy of the entire list.

T.V.R Tatachari, J.:— I agree.