REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 1128-1129 OF 2009
(Arising out of SLP (C) Nos. 17728-17729 of 2007)
Union of India & Ors. .....Appellants
Versus
B. Annathurai & Anr. .....Respondents
JUDGMENT
Dr. Mukundakam Sharma, J.
1. Leave granted.
2. These appeals arise out of the common judgment and order dated
24.4.2007 passed by the Division Bench of the High Court of Judicature at
Madras by which the High Court upheld the common order dated 11.8.2005
passed by the Central Administrative Tribunal, Madras Bench (hereinafter
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referred to as the `Tribunal’) and dismissed the writ petitions filed by the
appellant- Union of India.
3. By the aforesaid order the Tribunal quashed the minutes of the
Departmental Promotion Committee (DPC) dated 13.10.2003 in respect of
both the respondents herein and directed the appellants herein to evolve a
proper format for recording minutes of DPC and to review the case of the
two respondents, namely, Shri B. Annathurai and Shri E. Chandiran
Gandhiji respectively for promotion to the post of Scientist/Engineer `SB’
and Scientist/Engineer `SD’ with effect from 01.04.1999 and 01.01.2000
respectively. Review applications filed by the appellants were also
dismissed by the Tribunal through a common order dated 26.10.2005 as
being in the nature of an appeal. The writ petitions filed by the Union of
India and others against the aforesaid findings were dismissed by the High
Court.
4. A time bound merit based and non-vacancy oriented scheme of
promotion called Flexible Complementary Scheme (for short FCS) has been
in existence in Indian Space Research Organisation (for short `ISRO’)/
Department of Space (for short `DOS’) for promotion of its Scientific and
Technical personnel in all the four groups (A, B, C & D) right from the year
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1976. Emphasis was on merit and not on seniority unlike in other
Ministries/Departments of Government of India. The Department of Space
was vested with powers to formulate its own policies including norms for
recruitment and promotion of its personnel and to this extent, the DPT
orders were not applicable to ISRO/Department of Space. In 1972, ISRO
was brought under DOS by the Govt. of India
5. The Liquid Propulsion Systems Centre (for short `LPSC’), the
appellant Organization is one of the five major Centres of ISRO under DOS,
Government of India. The Ministry of Personnel and Training, Government
of India issued OM No. 2/41/97-PIC, dated 9.11.1998 as a continuation of
O.M. No. A.42014/2/86-Admn 1(A), dated 28.5.1986 introducing Flexible
Complementing Scheme of promotion in other Scientific and Technological
Departments which was not applicable to ISRO/DOS. Relevant portion of
the said OM is extracted hereunder:
“…….1. The recommendation of the Pay Commission that the
modified Flexible Complementing Scheme proposed by it
should be applicable in all the Departments, including the
Departments of Space, Atomic Energy and DRDO without any
special dispensation for any individual department, has not
been accepted. The existing scheme of merit based promotion
system covering the Group `A’, `B’, `C’ Personnel, as presently
applicable in the Department of Atomic Energy, the
Department of Space and the DRDO shall continue.
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2. The recommendation of the Pay Commission to define
“Scientific Administrators” and to exclude them from the
benefit of in situ promotions under Flexible Complementing
Scheme and to bring them under the ambit of “Assured Career
Progression Scheme” formulated by the Pay Commission has
not been accepted. However, it has been decided that the
Flexible Complementing Scheme should, as per its original
objective, be made applicable only to scientists and
technologists holding scientific posts in Scientific and
Technology Departments and who were engaged in scientific
activities and services…………”
6. The respondent no. 1 herein namely B. Annathurai was working as
Technical Assistant `C’ in the grade of Rs. 5500-175-9000 whereas
respondent No. 2, namely Shri E. Chandiran Gandhiji was working as
Scientist/Engineer `SC’. Both were working in the appellants Organization
i.e. Liquid Propulsion Systems Centre.
7. Respondent No. 1 was considered by the DPC for promotion to the
post of Scientist/Engineer `SB’ in the review held on 20.4.1999 along with
18 other candidates. Cases of five candidates including the respondent No.
1 were deferred by DPC to be reassessed after one year as per prevalent
norms. In view of certain special order issued by the Department, the
respondent No. 1 became eligible for consideration once again along with
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others even before completion of one year period. But respondent no. 1 did
not appear for the interview, although he was called for the same.
8. Respondent no. 2 was interviewed along with 19 other candidates.
Cases of six candidates including the respondent no. 2 were deferred by the
DPC. Respondent no. 2 was called for interview again after one year on
19.12.2000 but he did not appear. Respondent no. 1 was again called for
interview on 30.2.2000 but again he did not appear.
9. Both the respondents filed separate O.A. before the Central
Administrative Tribunal, Chennai Bench, (for short `Tribunal’) praying for
setting aside the DPC proceedings held on 20.4.1999 and 23.12.1999
respectively. They stated that the appellants are unhappy with them for
repeatedly approaching the Tribunal with regard to promotion. By a
common order dated 4.7.2001 the learned Tribunal directed to reconstitute
the DPC by including a member of SC/ST community as prayed for by
respondents. In compliance with the said direction the appellant
organization reconstituted the DPC and called both the respondents for
interview but they did not attend. They were given further opportunities
even subsequent thereafter on 1.4.1999 and 1.1.2000 respectively.
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Although they appeared before the Selection Committee but they refused to
answer any of the questions put to them by the DPC members. Therefore,
the respondents were not recommended for promotion.
10. Respondents were given further opportunities to appear in subsequent
selections held for the purpose but they did not appear. They did not appear
in the interview which was conducted as per Tribunal’s order dated
28.8.2003 as such they were not recommended for promotion by the duly
reconstituted DPC. The respondents filed O.As. before Tribunal which
were disposed off by the Tribunal by a common order dated 11.08.2005
directing the appellants to evolve a proper format for recording the minutes
of the DPC taking into account the various requirements and then to hold a
Review DPC retrospectively i.e. as on 01.04.1999 and 01.01.2000
respectively.
11. Being aggrieved the appellants herein filed writ petitions before the
High Court of Madras. The High Court found no merit in the writ petitions
and dismissed the same. It did not find any illegality or perversity in the
findings of the Ld. Tribunal and directed the writ appellants to implement
the directions of the Tribunal within a period of three months from the date
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of receipt of a copy of the order of the High Court. Hence the appellants
filed the Special Leave Petitions on which leave stand granted.
12. The High Court in paragraphs 10, 11 and 12 of the impugned
judgment observed as follows:
“10. The procedure for conducting DPC was issued by the
Government of India in G.I. Min. of per. & Trg. OM No.
2/41/97-PIC, dated 9.11.1998 as a continuation of O.M. No.
A.42014/2/86-Admn 1(A), dated 28.5.1986. The allegation of
the applicants is that the authorities have disobeyed the said
instructions issued by the Government of India. As could be
seen from the affidavit filed in support of these two writ
petitions, the contention of the appellants is that there is no
apportionment of marks for interview and ACRs in the scheme
of promotion followed for Scientific Assistants, Technical
Assistants and Scientists/Engineers and therefore, the DPCs,
need not mention any thing about these two elements of review
in the minutes. When Government of India has specifically
issued instructions/guidelines to be followed in such matters,
the appellants/authorities are bound to follow the same.
Without complying with the said instructions, the appellants
have taken a flimsy stand that such a practice is in vogue for
the last three decades. Prolonged continuation of illegality
cannot acquire the status of legality for any purpose. Further
from paragraph No. 16 of the order of the Tribunal, we are able
to see that the learned counsel for the authorities represented
before the Tribunal that he would personally brief the
authorities about the need for proper documentation of the DPC
proceedings, probably realizing the mistake committed by the
authorities. In such circumstances, taking a stand by the
authorities that everything is well with them, does not appear to
be fair and therefore, we are unable to appreciate the stand
taken by the appellants.
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11. Further more, the Tribunal, to find out whether the
authorities have acted fairly and considered the cases of the
applicants in both the writ petition herein had called for the
original minutes of the DPC held on 13.10.2003 and found the
entire procedure adopted by the authorities to be illegal, which
resulted in miscarriage of justice. The Tribunal, had
scrupulously analysed the case in depth as could be seen from
paras 12 and 13 of its order, in the light of the discrimination
and injustice meted out to both the applicants in both the writ
petitions just for the reason that they have knocked the doors of
justice, and had quashed the DPC proceedings held on
13.10.2003. The said files were also placed before us for our
perusal. Having gone through the entire files submitted by the
appellants, we are unable to take a different stand from that of
the one taken by the Tribunal, since the entire proceedings
depicts a clear picture of go-bye given to the instructions issued
in this regard by the Government of India.
12. Having gone through the entire materials placed on
record, including the original files submitted by the appellants
and the order of the Tribunal, we are unable to find any
illegality or error apparent on the face of the record or any
perversity in approach of the Tribunal, so as to invoke the
extraordinary jurisdiction of this Court under Article 226 of the
Constitution of India. Therefore, we find no merits in both
these writ petitions.”
13. The learned counsel for the appellants submitted that the Tribunal as
also the High Court failed to appreciate the fact that the DPC procedure and
the recording of minutes is the procedure which has been followed for more
than three decades in the Department of Space. He further submitted that
Para 10 of the judgment of the High Court, quoted above, suffers from an
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error apparent on the face of record, since the Division Bench had not
adverted to the stipulations contained in the first paragraph of DPT OM
dated 9.11.1998, which unequivocally states that the directions contained
therein are not applicable to the DOS as in the case of the Department of
Atomic Energy and the Defence Research and Development Organisation
(for short `DRDO’). It was pointed out that the suggestion of the Vth
Central Pay Commission to make the modified Flexible Complementing
Scheme of Promotion for the Group `A’ Scientists of all the Departments of
the Central Government without any special dispensation has not been
accepted by the Government and the merit-based promotion scheme existing
in these Departments has been allowed to continue, which fact has been
totally overlooked by the High Court.
14. It was also submitted that orders of reservation issued by the
Government of India are ipso facto not applicable to the Department of
Space, as the Scientific & Technical posts in Group `A’ and `B’ in the said
Department have been exempted from the purview of reservation orders
under Office Memorandum dated 28.7.1975. But despite the said fact the
appellant Deptt. complied with the orders of reservation passed by the
Tribunal by including SC and ST Member in the DPC and tried to conduct
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the DPC for the respondents but still the respondents did not consider it
appropriate to appear in the said interview and availed the opportunity. The
counsel also submitted that the DPC procedures are being followed in the
Department for more than three decades which were formulated on the basis
of a Presidential Notification dated 18.07.1972 conferring special powers
and privileges on the Department including the powers for formulating all
matters relating to personnel policy including the norms for recruitment and
promotion of its personnel. The counsel also submitted that the High Court
acted without jurisdiction in issuing the directions as contained in the
impugned order passed.
15. The counsel appearing for the respondents, however, refuted the
aforesaid submissions and contended that both the orders of the High Court
as also the order passed by the Tribunal are legal and valid, and therefore,
the directions issued in the said orders are required to be strictly complied
with by the appellants. It was also submitted that the Office Memorandum
dated 09.11.1998 clearly provides that the recommendation of Fifth Pay
Commission for application of modified Flexible Complementing Scheme
proposed by it in all the departments, including the Department of Space,
Atomic Energy and DRDO without any special dispensation for any special
Page 10 of 17
department, had not been accepted and thus the existing scheme of merit
based promotion system covering the Group `A’, `B’ and `C’ personnel, as
presently applicable in the Department of Atomic Energy would also
continue to apply to the Department of Space and the DRDO also. It was
also submitted that the contentions of the appellants that they are not bound
to follow the procedure laid down in modified Flexible Complementing
Scheme is unjustified and untenable. It was also submitted that the DPC has
not recorded its findings in detail while DPC is required to record in detail
its finding including the objective assessment of the merit of the candidate
on each factor considered for such assessment and therefore DPC acted in
derogation and in violation of its own circulars and consequently the order
passed by the Tribunal to evolve a proper procedure for eliminating the
elements of bias, prejudice or undue victimization of the candidates was
justified.
16. In the light of the aforesaid submissions of the counsel appearing for
the parties, we have scrutinised the records, particularly, the Office
Memorandum dated 9.11.1998. A bare perusal of the 1st paragraph of the
said Memorandum would make it crystal clear that the directions contained
therein are not applicable to the department of Space as in the case of
Department of Space and Atomic Energy and DRDO. It was clearly stated
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in the said Memorandum that the recommendation of the Fifth Pay
Commission to make modified Flexible Complementing Scheme of
promotion for Group `A’ Scientists for all the Departments of the Central
Government without any special dispensation for any individual
department, has not been accepted by the Government and the merit based
promotion existing in these Departments has been allowed to continue. The
said stipulation in the office memorandum appears to have been overlooked
by the Tribunal and the High Court while issuing the directions as contained
in their orders impugned herein.
17. The learned counsel appearing for the appellants also brought to our
notice a statement showing Review of the cases of the respondents by the
Department Promotion Committee. A perusal of the same would indicate
that both the respondents 1 and 2 have absented themselves in almost all the
selection processes before the Departmental Selection Committee. We
would like to extract the aforesaid statement, which is as under:
“DETAIL OF REVIEW OF THE RESPONDENTS:
1. Respondent No. 1 (Shri B. Annathurai) – for promotion to the post
of Scientist/Engineer `SB’/’SC’
Sl. No. DPC Review Date of Result
Interview
as onPage 12 of 17
01. 01.04.1999 20.04.1999 Attended (but
recommended as
`Deferred’)
02. 01.10.1999 05.11.1999 Absent
03. 01.04.2000 30.03.2000 Absent
04. 01.04.2001 26.02.2001 Absent
05. 01.04.1999* 04.10.2001 Absent
06. 01.04.1999* 13.11.2001 (re- Absent
scheduled)
07. 01.04.2002 19.03.2002 Absent
08. 01.04.1999* 21.11.2002 Attended (but
recommended as
`Status-Quo’ as he
declined to answer
technical questions)
09. 01.04.2003 26.03.2003 Absent
10. 01.04.1999* 13.10.2003 Attended (but
recommended as
`Deferred’)
11. 01.04.2004 22.03.2004 Absent
12. 01.04.2005 25.02.2005 Absent
13. 01.04.2006 24.04.2006 Absent
14. 01.01.2007 07.02.2007 Absent
@
15. 01.01.2008 07.12.2007 Absent
@
16. 01.01.2009 28.11.2008 Absent
@
@ Review for promotion to the post of Sci./Engr. `SC’ consequent on
revision of norms.
2. Respondent No. 2 (Shri E. Chandiran Gandhiji) – for promotion to
the post of Scientist/Engineer `SD’
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Sl. No. DPC Review Date of Result
Interview
as on
01. 01.01.2000 23.12.1999 Attended (but
recommended as
“Status Quo”)
02. 01.01.2001 19.12.2000 Absent
03. 01.01.2000* 03.10.2001 Absent
04. 01.01.2000* 13.11.2001 (re- Absent
scheduled)
05. 01.01.2002 28.12.2001 Absent
06. 01.01.2000* 20.11.2002 Attended (but
recommended as
`Status-Quo’ as he
declined to answer
questions)
07. 01.01.2003 23.12.2002 Absent
08. 01.01.2000* 09.10.2003 Attended (but
recommended as
`Status-Quo’)
09. 01.01.2004 19.12.2003 Absent
10. 01.01.2005 28.12.2004 Absent
11. 01.01.2006 23.12.2005 Promoted to the post
of Scientist/Engineer
`SD’
*As directed by the Hon’ble Tribunal
The above statements clearly indicate that although several
opportunities have been granted to the respondents but they chose not to
appear in the interviews held for the purpose of considering their cases for
promotion whereas now they have been arguing for their promotion with
retrospective effect. It is necessary to mention at this stage that respondent
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no. 2 Sh. E. Chandiran Gandhiji appeared in the DPC held on 01.01.2006.
He also appeared in the interview held on 23.12.2005 and he was found
suitable for promotion in the said selection and accordingly an order of
promotion was passed in his case, promoting him to the post of
`Scientist/Engineer `SD” in the year 2006, which he has accepted without
any protest. If the appellants despite being given opportunity to appear in
the selection choose not to appear in the selection and stayed away from it
they cannot seek for direction from the court for their promotion without
appearing in the interview from a retrospective date. The reason for such
non-appearance in the interview when called for selection and also for not
answering questions in the selection when they appeared has not been given
by the respondents. In any case such action on their part was at the peril of
their own service career and also definitely detrimental to their interest.
Having taken such a vital unilateral decision they now cannot seek to take
advantage of their own wrong.
18. The Tribunal as also the High Court failed to notice that the
Department has been following an elaborate procedure for assessing the
suitability or otherwise of the candidates for promotion and the said
procedure is based on the guidelines issued by the Government, which
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procedure is being followed for a very long period of time, and therefore,
the order and the direction issued by the Tribunal which has been upheld by
the High Court to evolve a new procedure for the recommendations of the
DPC was unwarranted and uncalled for.
19. On close scrutiny of the procedure, which is a part of the Government
Notifications dated 30.09.1976 and 22.02.1988, it is clear that the
Department has a detailed procedure for assessing the suitability of the
candidates for promotion. As per such procedure overall assessment of the
candidates has to be taken into consideration i.e. keenness exhibited by the
official in the pursuit of his profession, ability to take up higher
responsibilities, managerial/leadership qualities, theoretical knowledge, etc.
and more specifically achievements of the candidates being reviewed and
consequently such a procedure cannot be termed as either arbitrary or
unreasonable. In the matter of promotion to the job of Scientists/Engineers
working in area like Space, there is no possibility for compromising in the
matter of merit and therefore merit is prime consideration which is given
emphasis.
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20. Considering overall facts and circumstances of the case, we are of the
considered opinion that the findings and conclusions recorded by the
Tribunal and upheld by the High Court cannot be sustained and are
therefore by this Judgment we set aside and quash the same.
21. Accordingly, these appeals stand allowed.
………………………..J.
[S.B. Sinha]
…………………………J.
[Dr. Mukundakam Sharma]
New Delhi,
February 20, 2009
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