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High Court Of Delhi
S.C.SHARMA - Appellant
Versus
UNION OF INDIA - Respondent
Decided On : 04/30/1969
CENTRAL HEALTH SERVICES RULES - APPOINTMENT OF DEPARTMENTAL CANDIDATES - CONSTRUCTION AND VALIDITY - CENTRAL HEALTH SERVICES (AMENDMENT) RULES, 1966 - RULE 7A - INTERPRETATION - SELECTION OF DEPARTMENTAL CANDIDATES FOR APPOINTMENT TO NEW CATEGORIES - POWER OF GOVERNMENT TO SELECT OR NOT SELECT - VALIDITY OF RULE 7A - ARTICLE 311 OF THE CONSTITUTION - APPLICABILITY - ABOLITION OF POSTS - RIGHT OF INCUMBENTS - ARTICLE 310 AND PROVISO TO ARTICLE 309 OF THE CONSTITUTION - POWER OF GOVERNMENT TO RE-SELECT CANDIDATES AFTER RE-FORMATION OF CATEGORIES.
Fact of the Case:
The petitioner, a departmental candidate appointed to Category E of the Central Health Service under the Central Health Services Rules, 1963, challenged the validity of certain provisions of the Central Health Services (Amendment) Rules, 1966, and the Central Health Services (Second Amendment) Rules, 1967, which authorized the Government to make a second selection from among the departmental candidates initially appointed to the Service under the original Rules of 1963 for appointment to new categories formed by the Rules of 1966. The petitioner argued that the true construction of Rule 7a(1)(b) of the Rules of 1966 required the Government to appoint all the departmental candidates to the new categories and that the Rules, if interpreted otherwise, were ultra vires and unconstitutional.
Finding of the Court:
The Court held that the true construction of Rule 7a(1)(b) of the Rules of 1966 authorized the Government to make a second selection from among the departmental candidates initially appointed to the Service under the original Rules of 1963 and to select some of them and not to select the others for appointment to or absorption in the new categories formed by the Rules of 1966. The Court further held that the Rules were not ultra vires or unconstitutional, as the Government had the power to change the conditions of service even retrospectively and the exclusion of the posts held by the departmental candidates who were not selected to the new categories from the Service did not amount to removal or reduction in rank within the meaning of Article 311 of the Constitution.
Issues: 1. Whether the true construction of Rule 7a(1)(b) of the Central Health Services (Amendment) Rules, 1966, required the Government to appoint all the departmental candidates to the new categories formed by the Rules of 1966? 2. Whether the Central Health Services (Amendment) Rules, 1966, and the Central Health Services (Second Amendment) Rules, 1967, were ultra vires and unconstitutional?
Ratio Decidendi: 1. The Court interpreted Rule 7a(1)(b) of the Rules of 1966 to mean that the Government had the power to select or not select departmental candidates for appointment to the new categories formed by the Rules of 1966. The Court reasoned that the use of the words "after selection" in the Rule implied that the Government was not bound to take all the departmental candidates initially appointed to the Service in categories C, D, and E. This interpretation was further supported by Sub-rules (2) and (3) of Rule 7a, which contemplated that certain departmental candidates would not be absorbed in the new categories. 2. The Court held that the Rules were not ultra vires or unconstitutional. The Court reasoned that the Government had the power to change the conditions of service even retrospectively and that the exclusion of the posts held by the departmental candidates who were not selected to the new categories from the Service did not amount to removal or reduction in rank within the meaning of Article 311 of the Constitution.
Final Decision: The Court dismissed the writ petition, holding that the Central Health Services (Amendment) Rules, 1966, and the Central Health Services (Second Amendment) Rules, 1967, were valid and that the Government had the power to make a second selection from among the departmental candidates initially appointed to the Service under the original Rules of 1963 for appointment to new categories formed by the Rules of 1966.
( 1 ) IN this writ petition we are concerned with the :rue construction and the legality of certain provisions of the Central Health Services Rules, 1963 (hereinafter called the Original Rules of 1963) as amended by the Central Health Services (Amendment) Rules, 1966 (hereinafter called the Rules of 1966 ) and the Central Health Services (Second Amendment) Rules, 1967 (hereinafter called the Rules of 1967 ).
( 2 ) IN exercise of the powers conferred by the proviso to Article 309 of the Constitution, the President promulgated the Central Health Services Rules, 1963 constituting the Central Health Services by Rule 3 thereof. Under Rule 7 thereof, the Union Public Service Commission constituted a Selection Committee to determine the suitability of the departmental candidates for appointments to the different categories of the Central Health Service on its initial constitution, which are described in the first schedule thereto Accordingly, the petitioner was selected and appointed to a post in category E of the said service on the 1st January, 1965 under Rule 7 thereof. However, the Rules of 1966 added Rule 7a of the Original Rules of 1963, the relevant portion of which may be reproduced below, as it is the main provision, the true construction and validity of which is to be considered:
"7a. Appointment of departmental candidates; (1) As soon as may be after the commencement of the Central Health Service (Amendment) Rules 1966 (a) every departmental candidate who was appointed immediately before such commencement to any post in Category A or Category B of the Service or in any eouivalent post, shall be appointed to the corresponding Supertime Grade I or Supertime Grade II of the Service; (b) every departmental candidate who was appointed, immediately before such commencement to any post in any category (other than Category A or Category B), or in any other post, shall be appointed to the appropriate category after selection made on the recommendation of Selection Committee constituted in accordance with the provisions of Sub-Rule (1) of Rule 7, on the basis of his experience and the conditions of eligibility as specified below: Conditions of Eligibility XX XX XX (2) Vacancies in each category shall be filled by the appointment of departmental candidates selected under Sub-rule (1) and in the event of the non-availability of suitable departmental candidates for filling a vacancy, such vacancy may be filled by direct recruitment through the Commission. (3) Departmental candidates who are not absorbed under Sub-rule (1) shall continue to hold the posts to which they were regularly appointed, and for this purpose, such posts shall be deemed to have been excluded from the Service for so long as such departmental candidates continue to hold them. (4) Notwithstanding anything contained in these rules, any person who has been appointed to the Service under Sub rule (1) shall be entitled to draw salaries in the scales of pay specified in Rule 4 and non-practising allowance of the ratea prescribed in Rule 15. (a) if his appointment to the Service was made on or before the 1st day of July, 1965, from that date; or (b) if his appointment to the Service was made after the 1st day of July 1965, from the date of such appointment, as if such scales of pay and rates of non-practising allowance were in force, and the categories of posts were in existence, on the 1st day of July. 1965, or on the date of such appointment, as the case may be. "the Rules of 1967 substituted the following Sub-rule (3) of Rule 7a in place of the original Sub-rule 3:
" (3) Every departmental candidate who Is not absorbed under Sub-rule (1) shall- (i) In the case of a candidate appointed to the Central Health Service before the commencement of the Central Health Services (Amendment) Rules, 1966, continue to be a member of the Service holding a post specified before such commencement in Part A or Part B of the First Schedule, as the case may be, subject to
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