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

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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

as on

Date of  Interview

Result

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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-

scheduled) Absent

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

as on

Date of  Interview

Result

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-

scheduled)

Absent

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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