UNION OF INDIA Vs. SOMASUNDARAM VISWANATH

JUDGEMENT

(1.) 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 that meeting would become invalid.

(2.) The 1st respondent, Somasunadaram Viswanath, was one of the 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 7-8-1986. Aggrieved by the decision of the Tribunal, the appellants have filed this appeal by Special Leave.

(3.) Promotions to the posts in Level-I 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 Art. 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 Committees 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-I 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 to30thDecember, 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: