Supreme Court of India
UNION OF INDIAversusN.P. DHAMANIA,
- Citation
- 1994 INSC 474
- Decided
- 20 October 1994
Holding
The DPC's recommendations are advisory; the ACC may differ in public interest but must record reasons, and the Tribunal lacked jurisdiction to grant deemed promotion.
Summary
N.P. Dhamania, an officer of the Indian Telecommunication Service, was recommended for promotion to Senior Administrative Grade Level‑II by the Departmental Promotion Committee (DPC). The Appointments Committee of the Cabinet (ACC) returned the panel for a "rigorous review" and subsequently excluded Dhamania and four others from the final list. He challenged the exclusion before the Central Administrative Tribunal, which granted him a "deemed promotion". On appeal, the Supreme Court held that DPC recommendations are merely advisory; the ACC may deviate from them only in public interest and must record reasons for any deviation, though such reasons need not be communicated to the officer. The Court also held that the Tribunal exceeded its jurisdiction by granting deemed promotion and set aside that part of the order, directing the ACC to refer back to the UPSC with reasons and consider the promotion on merit.
Issues considered
- Whether the Appointments Committee of the Cabinet can differ from the recommendations of the Departmental Promotion Committee.
- Whether reasons must be recorded when the ACC departs from DPC recommendations.
- Whether the Tribunal was empowered to grant a deemed promotion.
- Whether consultation with the Union Public Service Commission under Article 320(3) of the Constitution is mandatory.
Legislation cited
Subjects
Service lawPromotionDepartmental Promotion CommitteeAppointments Committee of the CabinetUPSC consultationAdvisory recommendationsDeemed promotionAdministrative lawPublic interest
Judgment
A UNION OF INDIA ETC. ETC.
v.
N.P. DHAMANIA, ETC. ETC.
OCTOBER 20, 1994
B
[M.N. VENKATACHALIAH, CJ, J.S. VERMA ANDS. MOHAN, JJ.]
Service Law-Promotion-Recommendations of Departmental promo-
tion Committee-Advisory in nature, not binding on appointing authority-Ap-
pointing authority can differ from recommendations of Departmental
C Promotion C(>mmittee in public interest-Reasons must be given for so dif-
fering-Reasans to be recorded-Reasons recorded not required to be com-
municated to officer concemea.
The respondent joined the Post and Telegraphs Department in India
D Telecommunication Service on the basis of All India Selection held by
Union Public Service Commission. He was initially appointed as Assistant
Divisional Engineer, Telegraph. He was promoted to Junior Administra-
tive Grade. In 1985 the Departmental Promotion Committee prepared year
wise select panels of 59 officers for officiating promotion to the Senior
Administrative Grade Level II of the ITS Group 'A'. The respondent
E retained bis ~riginal seniority at serial no. 13 in the Junior Administrative
Grade for empanelment of the Senior Administrative Grade. The Panel
was approved by the concerned Minister in toto. It was forwarded to the
Department of Personnel for obtaining the approval of the Appointments
Committee of the Cabinet. The Committee on a perusal of the records
F directed that the panel should be returned to the UPSC for more "rigorous
review''. The UPSC informed that the penal bad been prepared strictly in
. accordance With the Instructions issned by the Department of Personnel
and there wi1s no scope for the review. The, panel was again approved by
the concerned Minister and the same was resubmitted to the Appoint-
ments Committee. The Committee approved a panel of 54 officers for
G Appointment to the Senior Administrative Grade 'A' Level Post of the ITS.
The remaining five out of the select panel of 59 officers including the
respondent were dropped. It was this exclusion which was challenged
before the Central Administrative Tribunal.
H The 1\'ibunal Held that the consultation with UPSC under Article
628
U.0.1. v. N.P. DHAMANIA 629
320(3) of the Constitution of India was direciory and not mandatory. It A
was held that it was incumbent on the Government to give reasons for
excluding the respondents in the select panels prepared by the UPSC. On
the basis, the contention of Union of India that the appointing authority
was competent to ignore the recommendations of the UPSC without as-
signing any reason whatsoever and without showing that it was doing so
B
in public interest was negatived. It was declared that the petitioners shall
be deemed to have been promoted w.e.f. the date the officer immediately
junior to him was promoted.
This appeal has been filed against the order of the Tribunal, and the
questions that arose for consideration were: c
(i) whether it is open to the Appointments Committee of the Cabinet
to differ from the recommendations of the Departmental Promotion Com-
mittee; and
(ii) Whether reasons must be given for so differing. D
Disposing of the matter, this Court
HELD : 1.1. The recommendations of the DPC are advisory in
nature. Such recommendations of the DPC are not binding on the Appoint-
ing Authority. It is open to the appointing authority to differ from the E
recommendations in public interest. [636-F]
1.2. Notwithstanding the fact that it is open to Appointments Commit-
tee which alone is the Appointing Authority and not the Minister concerned,
to differ from the recommendations of the DPC, it must give reasons for so_
differing to ward oil any attack of arbitrariness. Those reasons will have to F
be recorded in the file. In the instant case no reasons have been recorded for
differing from the recommendations of the DPC. [636-G]
1.3. There is no need to communicate the reasons recorded to the
officer concerned. Wberi challenged it is always open to the authority G
concerned to produce the necessary records before the court. [637-B]
1.4. The Tribunal had exceeded in its jurisdiction in the grant of
'deemed promotion' to the respondent. this court is unable to support the
finding merely because the Appointments Committee required the UPSC
to adopt a more rigorous review of the select list, it would be ·an exercise H
630 SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.
A in futility to make a reference back and seek further consultation with the
UPSC in the matter. On this score 'deemed promotion' cannot be ac-
corded. Still the appointments committee will have to consider the case of
the respondent on merits with reference to the records. Therefore, this part
of the order declaring the rHpondent shall be deemed to have been
promoted to !'lenior Administrative Grade, shall be set aside. [637-C-D)
B
1.5. In the instant case 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. In case after consult-
ation with the UPSC, the name of the respondent is restored to its original
C position as recommended by the UPSC, the case of the respondent for
promotion shall be considered on merit. [638-D)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1794 of
1988 etc. etc.
D, From the Judgment and Order dated 4.12.87 of the Central Ad-
ministrative 'I):ibunal, New Delhi in Regn. No. C.A. No. 1191 of 1986.
Altaf Ahmad, Additional Solicitor General, N.N. Goswami, T.C.
Sharma, Krisl\an Mahajan, Mrs. Anil Katiyar, Y.P. Mahajan, S.D. Sharma,
S.N. Terdol, Mrs. Indra Sawhney, P.N. Misra and AK. Sinha for the
E Appellants.
In-person for the Appellant.
In-person for the Respondent.
F C.N. Sreekumar, Avijit Bhattacharjee, Ms. Nisha Bagchi, Ms. S. Jain,
Mrs. Indu Malhotra and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by :
MOHAN, J. Leave granted.
G
In 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 Department;.i Promotion Committee (hereinafter referred to as the
H 'DFC') and (2) if so whether reasons must be given for so differing.
U.0.1. v. N.P. DHAMANIA [MOHAN, J.] 631
We shall advert to the facts in C.A. No. 1794/88 which will be enough A
to answer the above questions.
The respondent joined the Post and Telegraphs Department in Sep-
tember, 1963 in Indian Telecommunication Service (hereinafter referred to
as 'ITS') on the basis of All-India Selection held by the Union Public
B
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 Septem-
ber, 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 UPSC. C
Lastly, he was given selection grade of Rs. 2000-2250 in the Junior Ad-
ministrative Grade with effect from 1.12.1982.
On 9.12.85, a meeting of DPC was convened to prepare a select list
of officers for promotion to the Level II of Senior Administrative Grade D
of the ITS. The Senior Grade group 'A' carried pay scale of Rs. 2250-2500.
The meeting was converned pursuant to the requisition sent by the Ministry
of Communication to the UPSC for preparing a year-wise panel for 1984,
1985 and 19.86, the vacancies being 5, 24 and 25 respectively, in all, 54
vacancies.
E
The 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 II of the ITS Group 'A'. The Commit- F
tee 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". None of the officers pos-
sessed "outstanding" merit. The respondent retained his original seniority G
at Serial No. 13 in the Junior. Administrative Grade for empanelment of
the Senior Administrative Grade. The panel was approved by the con-
cerned Minister 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 14.1.86 that the panel should
be returned to the UPSC for a more 'rigorous review'. Accordingly, the H
632 SUPREME COURT REPORTS [1994] SUPP. 4 S.C.R.
A 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.
The UPS¢ by its letter dated 7.2.86 informed that the panel had been
B prepared strictly in accordance with the instructions issued by the Depart-
ment of Persounel 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 concerned Minister and the same was re-submitted to the
ACC. There was some correspondence concerning the adoption of
c 'rigorous review.' On 9.12.86 the ACC approved a panel of 54 officers for
appointment to !he Senior Administrative Grade 'A' Level Post of the ITS.
The remaining 5 out of the select panel of 59 officers including the
respondent was dropped.
It appear$ the respondent having gained knowledge about his not
D being included filing 0.A. No. 1191of1986 before the Central Administra-
tive Tribunal. An interim injunction restraining from excluding him from
the panel was also sought. The Tribunal, by its order dated 30th of
December, 1986, directed that any appointment or regularisation of person
who was placed below the respondent by the UPSC shall be subject to the
E final outcome of the main application. In view of this Order, by a Notifica-
tion dated 8.1.87 the President was pleased to appoint 40 more officers of
Junior Administrative Grade of ITS to officiate in Level II 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 DPC in the first select panel prepared by it, ultimately, he was
F not appointed since the ACC excluded 5 of the recommended names. It
was this exclusiop which was challenged before the Tribunal.
The Tribunal under the impugned judgment held that the consult-
ation with UPSC under Article 320(3) of the Constitution of India was
G directory and not mandatory. The Tribunal placed reliance on the follow-
ing observations in the decision in Jatinder Kumar and others v. State of •
Punjab and Others, [1985] l SCC 122:
"This, however does not clothe the appellants with any such
right. They cannot claim as of right that the Government must
H accept the recommendation of the Commission. If, however the
U.0.1. v. N.P. DHAMANIA (MOHAN, J.] 633
vacancy is to be filled up, the Government has to make appoint- A
ment strictly adhering co 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 per-
son whose name does not appear in the list. But it is open to the
B
Government to decide how many appointments will be made. The
process for selection and selection for the purpose of recruitment
against the anticipated vacancies does not create a right to be
appointed· to the post which can be enforced by a mandamus.'"
(emphasis ours)
c
On this basis, it was held that it was incumbent on the Government
to give reasons for excluding the respondents and 4 others in the select
panel prepared by the UPSC. Further, on this basis, the contention of
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. D
Ultimately, it gave the following direction :
"No reason has been assigned or is forthcoming for deletion of
the names of the petitioner from the pauel, although as many as
46 appointments to the Senior Administrative Grade Level-II have E
already been made. Under the circumstances, the only course to
ensure justice and fairplay 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 conse- F
quential reliefs by way of seniority, increased salary and allowances
from the said date.''
Mr. Altaf Ahmad, learned Additional Solicitor General, appearing
for the Union of India, the appellant herein, would urge the following : G
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 differing.
2. Even if the reasons need to be recorded it is enough if the file H
634 SUPREME COURT REPORTS (1994] SUPP. 4 S.C.R.
A contains the $ame. Those reasons need not be communicated to the
concerned officer.
3. In any event, it is not open to the Tribunal to accord 'a deemed
promotion'. It .is essentially • matter falling within the jurisdiction of the
Appointments' Cpmmittee.
B
Thus, th~ order of the Tribunal is liable to be set aside.
The respondent appearing in-person wonld urge that the words
"appointing au~hority'' would show that it has to be one authority. ACC
C consists of three Ministers. Its constitution can be changed any time.
Naturally, sucli a Committee cannot be the appointing authority. Hence,
the Minister concerned alone is the appointing authority. Even assuming
ACC is the appointing anthority, the grievance of the respondent is,
without giving good and sufficient reasons, promotion cannot be denied to
him, once he had been approved for promotion by the DPC in consultation
D with the UPSO which approval has been given by the Minister for Com-
munication.
In the insiant case, ACC chose to differ without assigning any reason.
In fact, the counsel for Union of India was unable to produce any material
E to show that the reasons had been assigned for differing from DPC.
Therefore, the name of the respondent cannot be arbitrarily dropped. It
was this arbitrariness which weighed with the Tribunal. On that basis, it
rightly conclud~d that it would be a futile exercise to direct the respondent
to make a reference back and have further consultation with the UPSC in
the matter. It was under those circumstances deemed promotion was
F ordered. To thi$, no exception could be taken.
We 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 II shall be made by
G selection on merit from amongst officers ordinarily with not less
than 3 years' approved continuous service in the Jr. Administrative
Grade po the recommendations of duly constituted DPC."
We may now advert to the instructions contained in O.M. dated 30th
H December, 1976 issued by the Cabinet Secretariat (Department of Person-
U.0.1. v. N.P. DHAMANIA [MOHAN, J.] 635
nel and Administrative Reforms). The relevant portion is reproduced A
below:
"VIII CONSULTATION WITH THE UPSC.
The recommendations of the Departmental Promotion Com-
mittee, whether it included a Member of the UPSC or not should B
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 (Ex-
emption from Consultation) Regulation, 1958 as amended from
time to time. Bro~dly speaking subject to certain exeptions men- C
tioned in the Regulations in so far as promotions are concerned,
consultation with the Commission is compulsory, in respect of
promotions from Group 'B' to Group 'A' posts. However, a refer-
ence may be made to the Regulations, as and when necessary.
D
IX. PROCEDURE TO BE FOLLOWED WHEN APPOINTING
AUTHORITY DOES NOT AGREE WITH THE RECOMMEN-
DATIONS OF DPC.
1. The DPC is a recommendatory body and the recommenda-
tions made by it are subject to approval by the appointing authority. E
There may be certain occasio~s when, for valid reasons, the ap-
pointing authority may find it necessary to disagree with the recom-
mendations of the duly constituted DPC. The procedure to be
followed in such cases will be as given below.
(2) Where UPSC is associated with the DPC, the recommen- F
dations of the D PC should be treated as recommendations of the
UPSC. If it is considered ne'7ssary by the appointing authority to
vary or disagree with the recommendations made by the D PC, the
procedure prescribed for overruling the recommendations of
UPSC should be followed." G
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 reproduced
below:
''The Government of India have decided that where the Union H
636 SUPREME COURT REPORTS [1994] SUPP.4 S.C.R.
A Pub)ic Service Commission have been consulted in regard to any
app(Jintments the recommendations made by the Commission
shol)ld 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 Commis-
B sion and the Commission given an opportunity of the further
justifying their recommendations. On the receipt of the observa-
tions of the Commission, their recommendations should consider
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
c with a self contained summary to the establishment Officer of the
Government of India who will place it before the Appointments
Co11111littee of the Cabinet consisting of the Hon'ble the Prime
Minister, Hon'ble Minister for Home Affairs and the Hon'ble
Minister administratively concerned with the appointment(s). In
D cases in which the Hon'ble Home Minister or the Hon'ble Prime
Minister happens to be the Minister concerned with the appoint -
ment, the Hon'ble Finance Minister will be added to the Co11111lit-
tee. The decision reached by the Appointments Committee in all
such cases should be COD111lunicated to the Commission by the
Ministry administratively concerned. Final orders in accordance
E with the decision will also be issued by that Ministry, copy being
endorsed to the Commission".
It will !le clear from the above that the reco11111lendations of the D PC
are advisory in nature. Such reco11111lendations are not binding on the
appointing authority. It is open to the appointing authority to differ from
F
the recommendations in public interest. That is beyond doubt.
Notwithstanding the fact that it is open to AAC which alone is the
appointing authority and not the Minister concerned, as urged by the
G respondent to differ from the recommendations of the D PC, 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 D PC.
That is why the tribunal also inter alia observes in the impngned judgment
H as under:
U.0.1. v. N.P. DHAMANIA (MOHAN, J.] 637
"However, the counsel for the respondent felt helpless in the A
matter and he failed to provide us any inkling -0f what prevailed
with the ACC in dropping the petitioner and four others out of
the select panel of 59 officers."
If the file had contained reasons something could be said in favour
of the appellant. But, that is not the case here. 1hen the question would B
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.
Turning to the grant of 'deemed promotion' we are clearly of the
c
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 D
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 tlie order
declaring the respondent shall be deemed to have been promoted to Senior
Administrative Grade, Level-II of the ITS with effect from the date his
immediate junior was promoted to the said grade. E
Civil Appeal Nos. 1794 of 1988, 3332 of 1988, 2367 of 1989 are
allowed.
In Civil Appeal Nos. 1726 of 1989, 784 of 1988, 2176 of 1988 and C.A.
No. 6894 of 1994 (arising out of SLP(C) No. 7356 of 1988 C.A. No. 4669/89 F
no interference is warranted except to the extent of following modifica-
tions :
'ACC may reconsider these cases within 3 months in the light of
the observations at page 7, 10 and above and if found suitable, may
give promotion with effect from the date, their immediate junior G
officer was promoted with consequential benefits of seniority and
salary etc.'.
Civil Appeal No. 1726 of 1989
The Appointing Authority shall consult the UPSC once again by H
638 SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.
A making reference back to them indicating the reasons for making a depar.
lure 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
B 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 UPSC.
c CA. No. 784, 2176 of 1988 and CA. 6894 of 1994
(arising out of SLP(C) No. 7356 of 1988)
The Appointing Authority shall make a reference back to the UPSC
indicating the reasons for making a departure from the panel recom-
mended by the Commission and obtain their views before taking a final
D decision in the matter. In case after consultation with the UPSC in the
manner \ndicated 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 II), shall
be considered on merit and necessary orders be passed within 3 months
from the date of the receipt of the file from UPSC.
E
AI1 the I.As. and CMPs. are disposed of accordingly. However, there
shall be ho order as to costs.
A.G. Petitions disposed of.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Service law"Sign in to search