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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,

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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

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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

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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                                                   PG NO 151 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

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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

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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

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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                                                   PG NO 154 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.