PETITIONER:
UNION OF INDIA & ORS.
Vs.
RESPONDENT:
SOMASUNDRAM VISWANATH & ORS.
DATE OF JUDGMENT22/09/1988
BENCH:
VENKATARAMIAH, E.S. (J)
BENCH:
VENKATARAMIAH, E.S. (J)
OJHA, N.D. (J)
CITATION:
1988 AIR 2255 1988 SCR Supl. (3) 146
1989 SCC (1) 175 JT 1988 (3) 724
1988 SCALE (2)823
CITATOR INFO :
F 1990 SC 166 (10)
ACT:
Civil Services: Government of India O.M. dated December
30, 1976 Procedure for making promotions and functioning of
Departmental Promotion Committee--D.P.C.--One of the Members
of Committee not present at the meeting of D.P.C.--
Proceedings whether vitiated.
%
Constitution of India 1950 Articles 73, 162 and 309
Civil Services--Recruitment and promotion--Norms--Can be
laid down either by law of appropriate Legislature or by
statutory service rules-Conflict between executive
instructions and rules--Rules prevail.
HEADNOTE:
Somasundram Viswanath, Respondent No. 1 herein was
working as an officer in the Defence Accounts Service.
Promotions to Level I & Level II of the Senior
Administrative Grade of the said Service were governed by
the Indian Defence Accounts Service (Recruitment) Rules,
l95X (as amended from time to time) promulgated by the
President of India under the proviso to Art. 309 of the
Constitution of India. Under the Rules, recruitments by
promotion to the senior administrative posts were to be made
by Selection on merit on the recommendations of a duly
constituted Departmental Promotion Committee. In accordance
with the said Rules, when the case of the Respondent came
within the Zone of consideration for promotion to the cadre
of controller of Defence Accounts, the same was placed
before the Departmental Promotion Committee, and the said
Committee in order to make appropriate recommendations
convened its meeting on 7.8.1986. At the said meeting one of
its members i.e. the Secretary to the Ministry of Defence
could not be present even though he was duly notified about
the date and time of the meeting. In his absence the
remaining members met and made the recommendation. The 1st
Respondent was graded good' and was not put in the Select
panel.
Aggrieved by the said decision Respondent filed a
Petition before the Central Administrative Tribunal,
Jabalpur Bench, challenging the validity of the
recommendations made by the Department Promotion Committee
and prayed for an order directing the appellant-union of
PG NO 146
PG NO 147
India--not to promote his juniors to the higher grade. The
principal contention raised by the Respondent before the
Tribunal was that the Departmental Promotion Committee was
not properly constituted, as one of its members, was absent
with the result the proceedings of its meeting held on
7.8.1986 stood vitiated and recommendation made by it should
not be acted upon. On the other hand the Deptt. contended
that the proceedings of the Committee were protected by the
administrative instructions issued by the Government of
India with regard to the procedure to be followed by the
D.P.C. In reply thereto the 1st Respondent pleaded that the
administrative instructions issued by the Government of
India could not override the rules made under the proviso to
Art. 309 of the Constitution and the same has to be ignored.
On consideration of the rival contentions the Central
Administrative Tribunal came to the conclusion that the
D.P.C. had not been properly constituted at the meeting held
on 7.8.1986 because of the absence of the Secretary to the
Govt. of India, Ministry of Defence and therefore the
proceedings of the said Committee were not valid. The
Tribunal accordingly set aside the recommendations made by
the Committee and directed that a fresh D.P.C. may be
convened for reconsidering the agenda which was before the
Departmental Committee on 7.8.86.
The Union of India being dissatisfied with the aforesaid
order of the Tribunal appealed by special leave, to this
Court.
Disposing of the appeal. the Court,
HELD: It is well settled that the norms regarding
recruitment and promotion of officers belonging to the Civil
appropriate Legislature or by rules made under the proviso
to Article 309 of the Constitution of India or by means of
executive instructions issued under Article 73 of the
Constitution of India in the case of Civil Services under
the Union of India and under Art. 162 of the Constitution of
India in the case of Civil Services under the State
Governments. [152B]
If there is a conflict between the executive
instructions and the rules made under the proviso to Article
309, the rules made under the proviso lo Article 309
prevail, and if there is a conflict between the rules made
under the proviso to Article 309 and the law made by the
appropriate Legislature the law made by the appropriate
Legislature prevails. [152C]
PG NO 148
The Office Memorandum dated 30.12.1976 1s in the nature
of complete code with regard to the topics dealt with by it.
Unless there is anything in the Rules made under the proviso
to Article 309 which is repugnant to the instructions
contained in the Office Memorandum the Office Memorandum
which is apparently issued under Article 73 or the
Constitution is entitled to be treated as valid and binding
on all concerned. [153B-C]
This Court does not agree with the decision of the
Central Administrative Tribunal that in the instant case the
proceedings of the Departmental Promotion Committee on
7.8.1986 have been vitiated solely on account of the reason
that the Secretary Ministry of Defence, one of its members
was not present at the meeting of the Committee. The
proceedings of the Departmental Promotion Committee at its
meeting held. on 7.8.1986 are not invalid on this account.
[153E]
The decision of the Tribunal set aside and the case
remitted to the Tribunal to dispose it of afresh. [153G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3273 of 1988.
From the Judgment and Order dated 25 11 1987 of the
Central Adminstrative Tribunal Jabalpur in Original
Application No. 68 of 1986.
P. Parmeshwaran for the Appellants
G.L. Sanghi Ashok Singh and S.K Agnihotri for the
Respondents.
The Judgment of the Court was delivered by
VENKATARAMIAH. J. The short question which arises for
consideration in this case is whether by reason of the
absence of one of the members of a Departmental Promotion
Committee at a meeting convened for the purpose of making
recommendations regarding the promotion of officers to
higher posts in the services under the Government of India
the recommendations made by the Departmental Promotion
Committee at the meeting would become invalid.
The 1st respondent Somasundaram Viswanath was one of the
PG NO 149
Officers of the Indian Defence Accounts Service who came
within the zone of consideration for promotion to the cadre
of Controller of Defence Accounts. In order to make
appropriate recommendations in that behalf the Departmental
Promotion Committee convened its meeting on 7.8.1986. One of
the members of the said Committee was the Secretary to the
Government of India, Ministry of Defence. Even though he had
been informed about the date and time of the meeting, he
could not be present at the meeting and in his absence the
remaining members of the Committee made recommendations. The
1st respondent was graded as ‘good’ and was not empanelled.
Aggrieved by the decision of the Departmental Promotion
Committee the 1st respondent filed a petition being Original
Application No. 68 of 1986 before the Central Administrative
Tribunal, Jabalpur Bench questioning the validity of the
recommendations made by the Departmental Promotion Committee
and praying for the issue of an order prohibiting the
appellants from promoting his juniors to the higher cadre.
In the course of his petition Respondent No. 1 raised many
pleas, but it is not necessary for us to refer to all of
them for the purpose of deciding the present case. One of
the contentions urged by the 1st respondent, which requires
to be considered is that the proceedings of the Departmental
Promotion Committee at its meeting held on 7.8.1986 stood
vitiated on account of the absence of the Secretary to the
Government of India, Ministry of Defence, who was one of the
members of the Committee. In reply to the above plea the
appellants pleaded that the Secretary to the Government of
India, Ministry of Defence was not present in the meeting
due to the fact that he had to attend Parliament on that day
and that the proceedings were protected by the departmental
instructions issued by the Government of India with regard
to the procedure to be followed by the Departmental
Promotion Committees. In reply thereto the 1st respondent
pleaded that the administrative instructions issued by the
Government of India could not override the rules made under
the proviso to Article 309 of the Constitution of India and
had, therefore, to be ignored. The Central Administrative
Tribunal, which heard the case, proceeded to set aside the
recommendations made by the Departmental Promotion Committee
on the main ground that the Committee had not been properly
constituted at the meeting held on 7.8.1986 because of the
absence of the Secretary to the Government of India,
Ministry of Defence and, therefore, the proceedings of the
Departmental Promotion Committee were not valid. The
Tribunal directed that a fresh Departmental Promotion
Committee may be convened for reconsidering the agenda which
was before the Departmental Promotion Committee on 7 . 8
appellants have filed this appeal by Special Leave.
PG NO 150
Promotions to the posts in Level-l and Level-II of the
Senior Administrative Grade of the Indian Defence Accounts
Service are governed by the Indian Defence Accounts
Service (Recruitment) Rules, 1958 (as amended from time to
time) (hereinafter referred to as ‘the Rules’)
promulgated under the proviso to Article 309 of the
Constitution of India by the President of India. Under the
Rules recruitments by promotion to the administrative posts
in the Indian Defence Accounts Service have to be made by
selection on merit with due regard to the seniority on the
recommendation of a duly constituted Departmental
Promotion Committee. In Appendix II to the Rules the
composition of the Departmental Promotion Commit- tees
for recommending eligible officers for promotion to the
various grades of the Service has been set out. The
Departmental Promotion Committee for purposes of promotion
to Level-l and Level-II of the Senior Administrative Grade
should consist of (i) the Chairman Member of the Union
Public Service Commission as Chairman, (ii) the Secretary,
Ministry of Defence, (iii) the Financial Adviser (Defence
Services), and (iv) the Controller General of Defence
Accounts as members. The Rules do not contain the details
regarding the functions of the Departmental Promotion
Committees, the procedure to be followed by them and
the requisite quorum at the meetings of the Departmental
Promotion Committees. These details had been laid down
in a number of official memoranda issued by the Government
of India from time to time in the form of departmental
instructions prior to 30th December, 1976. The Government
of India, however, issued an Office Memorandum bearing
No. 22011/6/76-Estt(D) on 30.12.1976 consolidating all
the prior administrative instructions governing the
functioning of and the procedure to be followed by the
Departmental Promotion Committees which were required to be
constituted under the several rules of recruitment in force
in the various departments of the Government of India.
The preamble of the said Office Memorandum reads thus:
“OFFICE MEMORANDUM
Sub: Procedure for making promotions and functioning of
the Departmental Promotion Committee.
The undersigned is directed to state that the Ministry
of Home Affairs (now the Department of Personnel and
Administrative Reforms) have in the past issued various
Office Memoranda on the subject relating to the constitution
and functioning of the Departmental Promotion Committees and
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the procedure to be followed in making promotions. With a
view to making such instructions, issued from time to time,
handy and available at one place, it has now been decided to
consolidate all these instructions. Accordingly the
following instructions are hereby issued on the subject for
the guidance of all the Ministries /Departments in the
Government ..”
Paragraph VII of the said Office Memorandum, which deals
with “the validity of the proceedings of Departmental
Promotion Committees when one member is absent”, reads thus:
“The proceedings of the Departmental Promotion Committee
shall be legally valid and can be operated upon
notwithstanding the absence of any of its members other than
the Chairman provided that the member was duly invited but
he absented himself for one reason or the other and there
was no deliberate attempt to exclude him from the
deliberation of the DPC and provided further that the
majority of the members constituting the Departmental
Promotion Committee are present in the meeting.”
According to Paragraph VII of the Office Memorandum,
extracted above, it is clear that the absence of any of the
members of a Departmental Promotion Committee, other than
the Chairman, would E not vitiate the proceedings of the
Departmental Promotion Committee provided that the member
absent has been duly invited but he absented himself for
some reason and that there was no deliberate attempt to
exclude him from the deliberation of the Departmental
Promotion Committee and that the majority of the members
constituting the Departmental Promotion Committee are
present in the meeting. In the instant case the only person
who was absent at the meeting of the Departmental Promotion
Committee was the Secretary to the Government of India,
Ministry of Defence who could not attend the meeting because
he had to be present in Parliament at the same time at which
the Departmental Promotion Committee had to meet. Th e
Chairman of the Departmental Promotion Committee was present
and the Chairman and the other members who were present
constituted the majority of the Departmental Promotion
Committee. It was urged on behalf of the 1st respondent that
the Office Memorandum dated 30.12.1976 which contained the
various administrative instructions regarding the procedure
for making promotions and the functions of the Departmental
Promotion Committees being merely in the nature of
PG NO 152
administrative instructions could not override the Rules
which had been promulgated under the proviso to Article 309
of the Constitution of India.
It is well settled that the norms regarding recruitment
and promotion of officers belonging to the Civil Services
can be laid down either by a law made by the appropriate
Legislature or by rules made under the proviso to Article
309 of the Constitution of India or by means of executive
instructions issued under Article 73 of the Constitution of
India in the case of Civil Services under the Union of India
and under Article 162 of the Constitution of India in the
case of Civil Services under the State Governments. If there
is a conflict between the executive instructions and the
rules made under the proviso to Article 309 of the
Constitution of India, the rules made under proviso to
Article 309 of the Constitution of India prevail, and if
there is conflict between the rules made under the proviso
to Article 309 of the Constitution of India and the law made
by the appropriate Legislature the law made by the
appropriate Legislature prevails. The question for
consideration is whether in the instant case there is any
conflict between the Rules and the Office Memorandum dated
30.12.1976, referred to above. We have already noticed that
there are different rules framed under the proviso to
Article 309 of the Constitution of India for making
recruitments to services in the different departments and
provisions have been made in them for the constitution of
Departmental Promotion Committees for purposes of making
recommendations with regard to promotions of officers from a
lower cadre to a higher cadre. But these rules are to some
extent skeletal in character. No provision has been made in
any of them with regard to the procedure to be followed by
the Departmental Promotion Committees and their various
functions and also to the quorum of the Departmental
Promotion Committees. These details which were necessary for
the proper functioning of the Departmental Promotion
Committees, as a matter of practice, were laid down prior to
30.12.1976 by the Government of India in the form of Office
Memoranda issued from time to time and that on 30.12.1976 a
consolidated Office Memorandum was issued containing
instructions with regard to such details which were
applicable to all Departmental Promotion Committees of the
various Ministries/Departments in the Government of lndia.
said Office Memorandum deals with several topics, such as of
the Departmental Promotion Committees, frequency at which
Departmental Promotion Committees should meet, matters to be
put up for consideration by the Departmental Promotion
Committees, the procedure to be observed by the Departmental
Promotion Committees. the procedure o be followed in the
PG NO 153
case of an officer under suspension whose conduct is under
investigation or against whom disciplinary proceedings are
initiated or about to be initiated, validity of the
proceedings of the Departmental Promotion Committees when a
member is absent, the need for consultation with the Union
Public Service Commission, the procedure to be followed when
the appointing authority does not agree with the
recommendations of a Departmental Promotion Committee,
implementation of the recommendations of the Departmental
Promotion Committees, ad hoc promotions, period of validity
of panels etc. etc. The Office Memorandum dated 30.12.1976,
therefore, is in the nature of a complete code with regard
to the topics dealt with by it. Unless there is anything in
the Rules made under the proviso to article 309 of the
Constitution of India, which is repugnant to the
instructions contained in the Office Memorandum, the Office
Memorandum which is apparently issued under article 73 of
the Constitution of India is entitle to be treated as valid
and binding on all concerned. In the instant case the Rules
do not contain any of these details except indicating who
are all the persons who constitute the Departmental
Promotion Committee. We do not, therefore, find any
repugnance between the Rules and the Office Memorandum. In
the circumstances we feel that the plea raised by the 1st
respondent in is additional affidavit dated 13th May, 1988
(page 132 of the Paper Book) that the Office Memorandum is
ineffective cannot be upheld. We do not agree with the
decision of the Central Administrative Tribunal that in the
instant case the proceedings of the Departmental Promotion
Committee on 7.8.1986 have been vitiated ” solely on account
of this reason viz., that secretary, Ministry of Defence,
one of its members was not present”. We hold that the
proceedings, of the Departmental Promotion Committee at is
meeting held on 7.8.1986 are not invalid for the above
reason.
We, therefore, reverse the aforesaid part of the
decision of the Tribunal. The Tribunal has no doubt in the
course of its order referred to certain other matters, but
we feel that it proceeded to dispose of the case mainly on
the ground that the proceedings of the Departmental
Promotion Committee dated 7.8.1986 were vitiated on account
of the absence of the Secretary to the Government of India,
Ministry of Defence at that meeting. We notice that adequate
attention has not been given to the other aspects of the
case and according to us those aspects require fresh
consideration at the ands of the Tribunal. We, therefore,
set aside the decision of the Tribunal against which this
appeal is filed and remand the case to it to dispose it of
afresh in the light of the above observations. The Tribunal
is requested to decide the case within three months from the
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date of receipt of a copy of this order.
The appeal is accordingly disposed of. There shall,
however, be no order as to costs.
Y. Lal Appeal disposed of.