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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: U.D. DWIVEDI ETC.

DATE OF JUDGMENT:       03/12/1996

BENCH: KULDIP SINGH, SUHAS C. SEN

ACT:

HEADNOTE:

JUDGMENT:                THE 3RD DAY OF DECEMBER, 1996 Present:               Hon’ble Mr. Justice Kuldip Singh               Hon’ble Mr. Justice Suhas C.Sen      N.N. Goswamy,  Sr. Adv.,  (SN. N.  Terdol, and Mr. Anil Katiyar) Advs.  for Mrs.  Sushma Suri, Adv. with him for the appellants      N.S. Bisht and Umesh, Advs. (N.P) for the Respondents                       J U D G M E N T      The following Judgment of the Court was delivered: [With Civil  Appeal No. 15345 of 1996 (Arising out of S.L.P. (C) No.9793 of 1992)]                       J U D G M E N T SEN, J.      Leave granted.      U.D.  Dwivedi   was  employed  in  Defence  Research  & Development Organisation  (DRDO) in  1974 and was working as Scientist ‘B’  in the  pay-scale of  Rs. 200-4000,  Gazetted Group ‘A’,  DRDS Service  at Solid State Physics Laboratory, Timarpur, Delhi,  with effect  from 1st  July, 1983.  He was working under  Dr.  A.K.  Sreedhar,  Director,  Solid  State Physics Laboratory, Timarpur, Delhi. Dwivedi was assessed by the Assessment  Board at  Recruitment and  Assessment Centre (RAC), Timarpur,  on 1.2.1989  for the  service period  from July, 1983  to June,  1988 for  promotion  to  the  post  of Scientist ‘C’  in the pay-scale of Rs.3000-4500 in DRDS. The assessment is called as Assessment Year 1989 and Dwivedi was not declared successful in the assessment.      Dwivedi challenged  the assessment  for the  year  1988 before the  Principal Bench  of the  Central  Administrative Tribunal, New  Delhi. The  ground of challenge was that RAC, which  conducted   the  assessment,   was  set   up  in   an unconstitutional manner  because the  entire assessment  was conducted  under   the  chairmanship  of  one  Professor  S. Sampath. Professor  Sampath, being  a former  member of  the Union Public  Service Commission (UPSC), was prohibited from taking up  any employment  under Union  of  India  or  State Government  as   laid  down   in  Article   319(c)  of   the Constitution of India. The Tribunal upheld the contention of Dwivedi  and   held  that  the  Assessment  made  under  the

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Chairmanship of  Professor Sampath  was null and void. Union of India  has come  up in  appeal against  the order  of the Tribunal.      The ground  taken by the Director General, Pesearch and Development Organisation, Ministry of Defence, is that prior to  the   issue  of  GSR-512  dated  1.6.85,  promotion  and recruitment to  scientific and  technical posts  under  DRDO were under the purview of UPSC and all the assessment boards for promotion  of scientists  prior to the issue of the said GSR were conducted by the UPSC. Appointment and promotion to these posts were, however, excluded from the purview of UPSC by the  said GSR. Therefore, Recruitment & Assessment Centre was constituted  at DRDO Headquarter headed by a Director to provide  secretarial   services  to   the  Assessment  Board constituted  to   assess  candidates   for  recruitment   to scientific and  technical posts  and promotion of Scientists to higher  posts. Assessment  for promotion of Scientists of DRDS to  higher grades  was  made  by  an  Assessment  Board consisting of  a Chairman  nominated by  the Government, two departmental officer  of  appropriate  status  nominated  as members and two outside experts nominated by the Government. It was  contended that  Professor Sampath,  Chairman of  the Recruitment and Assessment Centre under DRDO, was not in the employment of the Central Government and was not holding any employment under  the Government.  He was  a full  time non- official consultant  on contract basis to advise DRDO on the matters of  recruitment and  assessment  of  Scientists  and Engineers. He  functioned as  Chairman of  Assessment  Board constituted for the purpose of recruitment to scientific and technical posts  under DRDO. Promotion of Scientists of DRDS to higher grades on the basis of assessment made by RAC was, therefore, valid.  A point  was also  taken  that  statutory remedies  had  not  been  exhausted  before  coming  to  the Tribunal.      After hearing  the parties, we are of the view that the Tribunal has  come to  a right  decision in  this matter  in holding that the entire process of assessment was bad in law and, therefore, had to be struck down.      Article 319  of the Constitution is      as under:-      "319. Prohibition as to the holding      of offices by members of Commission      on ceasing  to be such members:- On      ceasing to hold office,      (a)  the   Chairman  of  the  Union      Public Service  Commission shall be      ineligible for  further  employment      either  under   the  Government  of      India or  under the Government of a      State;      (b) the  Chairman of a State Public      Service   Commission    shall    be      eligible  for  appointment  as  the      Chairman or any other member of the      Union Public  Service Commission or      as the  Chairman of any other State      Public Service  Commission, but not      for  any  other  employment  either      under the  Government of  India  or      under the Government of a State;      (c)  a   member  other   than   the      Chairman  of   the   Union   Public      Service   Commission    shall    be      eligible  for  appointment  as  the      Chairman  of   the   Union   Public

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    Service  commission   or   as   the      Chairman of  a State Public Service      Commission, but  not for  any other      employment   either    under    the      Government of  India or  under  the      Government of a State;      (d)  a   member  other   than   the      Chairman of  a State Public Service      Commission shall  be  eligible  for      appointment as  the Chairman or any      other member  of the  Union  Public      Service  Commission   or   as   the      Chairman of that or any other State      Public service  Commission, but not      for  any  other  employment  either      under the  Government of  India  or      under the Government of a State."      Clause (c)  of Article  319 prohibits  holding  of  any employment either under the Government of India or under the Government of  a State  by a person who has been a member of the Union  Public Service Commission, except as the Chairman of Union  Public Service  Commission or as the Chairman of a State Public  Service Commission.  there is not dispute that Professor Sampath  was a  member of the Union Public Service Commission. Therefore,  apart from  the post of the Chairman of Union  Public Service  Commission or  Chairman of a State Public Service  Commission, he was ineligible for employment in any  other capacity  under the  Government of  India or a State  Government.   That  is  the  constitutional  mandate. Whether  the   employment  was  held  under  a  contract  or otherwise is  quite immaterial for this purpose. The fact of the matter  is that  Professor Sampath  was employed  as the Chairman  of   the  Assessment   Board  at  Recruitment  and Assessment Centre.  The  constitutional  mandate  cannot  be evaded by  giving Professor  Sampath a  contract and  not  a letter of  employment. Clause  (c) of  Article 319 bars "any other employment"  which will  include even an employment by contract  under   the  Government  of  India  or  the  State Government.      In this view of the matter, the appeal must fail and is dismissed. There will be no order as to costs.      Leave granted.      In view  of our  judgment in  Civil Appeal No. 15344 of 1996 (Arising  out S.L.P.  (C) No.1477 of 1992), this appeal is also dismissed. There will be no order as to costs.