Union of India Vs. N.P. Dhamania  INSC 533 (20 October 1994)
S. (J) Mohan, S. (J) Venkatachalliah, M.N.(Cj) Verma, Jagdish Saran (J)
1995 AIR 568 1995 SCC Supl. (1) 1 JT 1994 (7) 465 1994 SCALE (4)629
Judgment of the Court was delivered by S. MOHAN, J.- Leave granted.
these cases the questions that arise for our consideration are : (1) whether it
is open to the Appointments Committee of the Cabinet (hereinafter referred to
as the ACC) to differ from the recommendations of the Departmental Promotion
Committee (hereinafter referred to as the 'DPC') and (2) if so, whether reasons
must be given for so differing.
shall advert to the facts in CA No. 1794 of 1988 which will be enough to answer
the above questions.
respondent joined the Posts and Telegraph Department in September 1963 in
Indian Telecommunication Service (hereinafter referred to as 'ITS') on the
basis of All India Selection held by the Union Public Service Commission
(hereinafter referred to as the 'UPSC'). He was initially appointed as
Assistant Divisional Engineer Telegraph. Thereafter he was promoted to the rank
of Divisional Engineer Telegraph in September 1966. In August 1974 he was
promoted to Junior Administrative Grade of the ITS pursuant to the selections
made on all-India basis by a duly constituted DPC under the Chairmanship of a
Member of the UPSC. Lastly, he was given selection grade of Rs 2000- 2250 in
the Junior Administrative Grade with effect from 1- 12-1982.
5. On 9-12-1985, a meeting of DPC was convened to prepare a select
list of officers for promotion to Level II of Senior Administrative Grade of
the ITS. The Senior Grade Group 'A' carried pay scale of Rs 2250-2500. The
meeting was convened pursuant to the requisition sent by the Ministry of
Communication to the UPSC for preparing a year- wise panel for 1984, 1985 and
1986, the vacancies being 5, 24 and 25 respectively, in all, 54 vacancies.
Annual Confidential Report dossiers of 104 officers of Junior Administrative
Grade service were forwarded along with the requisition on an assessment made
by the DPC. The Committee prepared year-wise select panels as also consolidated
panel for officiating promotion to the Senior Administrative Grade Level 11 of
the ITS Group 'A'. The Committee recommended 5 officers for empanelment for the
year 1984, 24 officers for the year 1985 and 30 officers for the year 1986. It
requires to be stated, at this stage, that the records show the performance of
all officers including that of the respondent was rated "very good".
of the officers possessed "outstanding" merit. The respondent
retained his original seniority at Serial No. 13 in the Junior Administrative
Grade for empanelment of the Senior Administrative Grade. The panel was
approved by the Minister concerned in toto. It was forwarded to the Department
of Personnel for obtaining the approval of the ACC. The ACC on a perusal of the
records directed by its communication dated 14-1-1986 that the panel should be returned to the UPSC for a more
the Minister for Communication returned the select panel along with the ACR
dossiers of all the 59 officers. The ACC made it clear that it was not happy
with the grading of "very good" given to all officers and that the
Committee expected more selectivity.
UPSC by its letter dated 7-2-1986 informed that the panel had been
prepared strictly in accordance with the instructions issued by the Department
of Personnel and there was no scope for the review. Accordingly the UPSC had no
further advice to offer in the matter. The panel was again approved by the
Minister concerned and the same was re- submitted to the ACC. There was some
correspondence concerning the adoption of "rigorous review". On 9-12-1986 the ACC approved a panel of 54 officers for
appointment to the Senior Administrative Grade 'A' Level post of the ITS.
remaining 5 out of the select panel of 59 officers including the respondent
appears the respondent having gained knowledge about his not being included
filed OA No. 1191 of 1986 before the Central Administrative Tribunal. An
interim injunction restraining from excluding him from the panel was also 4
sought. The Tribunal, by its order dated 30-12-1986, directed that any appointment or
regularities of person who was placed below the respondent by the UPSC shall be
subject to the final outcome of the main application. In view of this order, by
a notification dated 8-1-1987 the President was pleased to
appoint 40 more officers of Junior Administrative Grade of ITS to officiate in
Level 11 of Senior Administrative Grade of ITS Group 'A'. The name of the
respondent did not figure in that list. The result is though the name of the
respondent was included by the DPC in the first select panel prepared by it,
ultimately, he was not appointed since the ACC excluded 5 of the recommended
names. It was this exclusion which was challenged before the Tribunal.
Tribunal under the impugned judgment held that the consultation with the UPSC
under Article 320(3) of the Constitution of India was directory and not
mandatory. The Tribunal placed reliance on the following observations in the
decision in Jatinder Kumar v. State of Punjabi: (SCC p. 128, para 12)
however does not clothe the appellants with any such right. They cannot claim
as of right that the Government must accept the recommendation of the
Commission. If, however, the vacancy is to be filled up, the Government has to
make appointment strictly adhering to the order of merit as recommended by the
Public Service Commission. It cannot disturb the order of merit according to
its own sweet will except for other good reasons viz. bad conduct or character.
The Government also cannot appoint a person whose name does not a pear in the
list. But it is open to p the Government to decide how many appointments will
be made. The process for selection and selection for the purpose of recruitment
against anticipated vacancies does not create a right to be appointed to the
post which can be enforced by a mandamus." (emphasis ours)
this basis, it was held that it was incumbent on the Government to give reasons
for excluding the respondent and 4 others in the select panel prepared by the
on this basis, the contention of the Union of India that the appointing
authority is competent to ignore the recommendations of the UPSC without
assigning any reason whatsoever and without showing that it was doing so in
public interest was negatived.
it gave the following direction:
reason has been assigned or is forthcoming for deletion of the names of the
petitioner from the panel, although as many as 46 appointments to the Senior
Administrative Grad e Level 11 have already been made. Under the circumstances,
the only course to ensure justice and fair play to the petitioner would be to
declare that the petitioner shall be deemed to have been promoted w.e.f. the
date the officer immediately junior to him was promoted to the Senior
Administrative Grade Level II of ITS vide notification dated 8-1- 1987. The
petitioner shall also be entitled to all consequential reliefs by way of
seniority, increased salary and allowances from the said date." 11.Mr Altaf
Ahmed, learned Additional Solicitor General, appearing for the Union of India,
the appellant herein, would urge the following:
(1985) 1 SCC 122: 1985 SCC (L&S) 174 5 1 . It is open to an Appointments
Committee to differ from the recommendations of the DPC since such
recommendations do not have binding force. No reasons need be recorded for so
Even if the reasons need to be recorded it is enough if the file contains the
reasons need not be communicated to the officer concerned.
any event, it is not open to the Tribunal to accord "a deemed
promotion". It is essentially a matter falling within the jurisdiction of
the Appointments Committee.
Thus, the order of the Tribunal is liable to be set aside.
The respondent appearing in person would urge that the words "appointing
authority" would show that it has to be one authority. The ACC consists of
three Ministers. Its constitution can be changed any time. Naturally, such a
Committee cannot be the appointing authority. Hence, the Minister concerned
alone is the appointing authority. Even assuming ACC is the appointing
authority, the grievance of the respondent is, without giving good and
sufficient reasons, promotion cannot be denied to him, once he had been
approved for promotion by the DPC in consultation with the UPSC which approval
has been given by the Minister for Communication.
the instant case, the ACC chose to differ without assigning any reason. In
fact, the counsel for the Union of India was unable to produce any material to
show that the reasons had been assigned for differing from the DPC.
the name of the respondent cannot be arbitrarily dropped. It was this
arbitrariness which weighed with the Tribunal. On that basis, it rightly
concluded that it would be a futile exercise to direct the respondent to make a
reference back and have further consultation with the UPSC in the matter. It
was under those circumstances deemed promotion was ordered. To this, no
exception could be taken.
have given our careful consideration to the above arguments. The Recruitment
Rules dated 6-1-1975, at para 29, lay down that:
"Appointment on promotion to SAG Level 11 shall be made by selection on
merit from amongst officers ordinarily with not less than 3 years' approved
continuous service in the Junior Administrative Grade on the recommendations of
duly constituted DPC." 16. We may now advert to the instructions contained
30-121976 issued by the Cabinet Secretariat (Department of Personnel and
Administrative Reforms). The relevant portion is reproduced below:
CONSULTATION WITH THE UPSC
.LM15 The recommendations of the Departmental Promotion Committee, whether it
included a Member of the UPSC or not, should be referred to the Commission for
approval, if (1) Consultation with the Commission is compulsory under Article
320(3) of the Constitution of India, read with UPSC (Exemption from
Consultation) Regulations, 1958 as amended from time to time. Broadly speaking
subject to certain exemptions mentioned in the Regulations insofar as
promotions are concerned, consultation with the Commission is compulsory, in
respect of 6 promotions from Group 'B' to Group 'A' posts. However, a reference
may be made to the Regulations, as and when necessary.
IX. PROCEDURE TO BE FOLLOWED WHEN APPOINTING AUTHORITY DOES NOT AGREE WITH THE
RECOMMENDATIONS OF DPC
(1) The DPC is a recommendatory body and the recommendations made by it are
subject to approval by the appointing authority. There may be certain occasions
when, for valid reasons, the appointing authority may find it necessary to
disagree with the recommendations of the duly constituted DPC. The procedure to
be followed in such cases will be as given below.
Where the UPSC is associated with the DPC, the recommendations of the DPC
should be treated as recommendations of the UPSC. If it is considered necessary
by the appointing authority to vary or disagree with the recommendations made
by the DPC, the procedure prescribed for overruling the recommendations of the
UPSC should be followed."
The relevant portion of the procedure contained in the Ministry of Home Affairs
O.M. No. 18/42/50-Estts. dated 27- 11-1950 is
Government of India have decided that where the Union Public Service Commission
has been consulted in regard to any appointments the recommendations made by
the Commission should not be departed from unless, in the opinion of the Hon'ble
Minister concerned, exceptional circumstances exist which in the public
interest require such departure. In such a case the reasons for holding this
opinion should be communicated to the Commission and the Commission given an
opportunity of further justifying their recommendations. On the receipt of the
observations of the Commission, their recommendations should be considered
further by the Ministry concerned, if, after further consideration, the
Ministry still considers that the recommendations made by the Commission should
not be accepted, the case should be referred with a self-contained summary to
the Establishment Officer of the Government of India who will place it before
the Appointments Committee of the Cabinet consisting of the Hon'ble Prime
Minister, the Hon'ble Minister for Home Affairs and the Hon'ble Minister
concerned administratively with the appointment(s). In cases in which the Hon'ble
Home Minister or the Hon'ble Prime Minister happens to be the Minister
concerned with the appointment, the Hon'ble Finance Minister will be added to
the Committee. The decision reached by the Appointments Committee in all such
cases should be communicated to th e Commission by the Minister
administratively concerned. Final orders in accordance with the decision will
also be issued by that Ministry, copy being endorsed to the Commission."
will be clear from the above that the recommendations of the DPC are advisory
in nature. Such recommendations are not binding on the appointing authority.
open to the appointing authority to differ from the recommendations in public
interest. That is beyond doubt.
Notwithstanding the fact that it is open to the ACC which alone is the
appointing authority and not the Minister concerned, as urged by the respondent
7 to differ from the recommendations of the DPC, it must give reasons for so
differing to ward off any attack of arbitrariness. Those reasons will have to
be recorded in the file. It requires to be stated at this stage that we have
perused the file in the instant case. We find no reasons have been recorded for
differing from the recommendations of the DPC. That is why the Tribunal also inter
alia observes in the impugned judgment as under:
the counsel for the respondent felt helpless in the matter and he failed to
provide us any inkling of what prevailed with the ACC in dropping the
petitioner and four others out of the select panel of 59 officers." 20.If
the file had contained reasons something could be said in favour of the
appellant. But, that is not the case here.
the question would be whether the reasons recorded are required to be
communicated to the officer concerned. Our answer is in the negative. There is
no need to communicate those reasons. When challenged it is always open to the
authority concerned to produce the necessary records before the court.
to the grant of "deemed promotion" we are clearly of the view that
the Tribunal had exceeded in its jurisdiction. We are unable to support the
finding merely because the ACC required the UPSC to adopt a more rigorous
review of the select list. It would be an exercise in futility to make a
reference back and seek further consultation with the UPSC in the matter. On
this score, "deemed promotion" cannot be accorded. Still the ACC will
have to consider the case of the respondent on merits with reference to the
records. Therefore, we set aside this part of the order declaring the
respondent shall be deemed to have been promoted to Senior Administrative Grade
Level 11 of the ITS with effect from the date his immediate junior was promoted
to the said grade.
may reconsider these cases within 3 months in the light of the observations at
pages 7, 10 and above (paras 13-14 and 18-21 above) and if found suitable, may
give promotion with effect from the date, their immediate junior officer was
promoted with consequential benefits of seniority and salary etc.
Appeal Nos. 1794 of 1988, 3332 of 1988 and 2367 of J989 are allowed.
Civil Appeal Nos. 1726 of 1989, 784 of 1988, 2176 of 1988 and CA No. 6894 of
1994 (arising out of SLP (C) No. 7356 of 1988), CA No. 4669 of 1989, no
interference is warranted except to the extent of following modifications:
Appeal No. 1726 of 1989 25.The Appointing Authority shall consult the UPSC once
again by making reference back to them indicating the reasons for making a
departure from the panel recommended by the Commission and also forward the
material on which it has reached the conclusion not to appoint the respondent
and obtain their views before taking final decision in the matter. In case
after consultation with the UPSC, in the manner indicated above, the name of
the respondent is restored to its original position as recommended by the UPSC,
the case of the respondent for promotion to the post of Commissioner of Income
Tax, shall be considered on merit and necessary orders be passed within 3
months from the date of the receipt of the file from the UPSC.
Nos. 784 and 2176 of 1988 and CA No. 6894 of 1994 (arising out of SLP (C) No.
7356 of 1988) 26.The Appointing Authority shall make a reference back to the
UPSC indicating the reasons for making a departure from the panel recommended
by the Commission and obtain their views before taking a final decision in the
matter. In case after consultation with the UPSC in the manner indicated above,
the name of the respondent is restored to its original position as recommended
by the UPSC the case of the respondent for promotion to the post of
Commissioner of Income Tax (Level 11), shall be considered on merit and
necessary orders be passed within 3 months from the date of receipt of the file
from the UPSC.
the IAs and CMPs are disposed of accordingly.
there shall be no order as to costs.