Union of India &
Ors. Vs. B.Annathurai & ANR. [2009] INSC 382 (20 February 2009)
Judgment
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
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 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 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.
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 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.
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 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.
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 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 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 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 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:
1. Respondent No. 1
(Shri B. Annathurai) - for promotion to the post of Scientist/Engineer
`SB'/'SC' Sl. No. DPC Review Date of Result Interview as on
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- Absent scheduled)
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' Page 13 of 17 Sl. No. DPC Review Date of Result Interview as on
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- Absent scheduled)
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 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 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.
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.
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