SUPREME COURT OF INDIA

Before:- S. Saghir Ahmad and G.B. Pattanaik, JJ.

Civil Appeal No. 42 of 1990. D/d. 28.9.1999.

Union of India - Appellant

Versus

R.A. Yadav and another - Respondents

A. Defence Research and Development Service Rules, 1979, Rule 8(2)(d) - Interpretation of Rule 8(2)(d) - Five years' qualifying service provided for promotion from Grade 'D' to 'E' - However, a candidate who earned three successive "outstanding" reports or found successive "very good" reports in the same grade could be assessed for promotion to next higher grade - Held, this is implied that a candidate fulfilling this criterion could be considered for promotion even earlier than five years - Thus an employee promoted to Grade 'D' in 1980 could be considered for promotion to Grade 'E' in 1983 itself if he earned three "outstanding" reports, and in 1984 itself if he earned four "very good" reports - But different view expressed by CAT that the respondent ought to have been considered in 1983 though he did not earn such reports, held, not sustainable.

[Para 2]

B. Constitution of India, Article 136 - New Plea when can be entertained - Constitutional question already decided and factual position not disputed by the opposite side - Plea entertained - Respondent for the first time raised a plea before the Supreme Court that the Board which assessed him unsuitable was chaired by a person who by virtue of Article 319(c), was disqualified - Law point already decided in Union of India v. U.D. Dwivedi, 1997(3) SCC 182 - Plea entertained and accepted despite objection raised by opposite side - Practice and Procedure.

[Para 2]

C. Promotion - Departmental Promotional Committee/Selection Board - Invalid composition - Vitiation of selection process - An ex-member of UPSC who was disqualified under Article 319(c), acted as Chairman of Selection Board in the instant case - Assessment of the Board set aside on this count - In view that impugned assessment took place about 14 years back (in 1985), relief was restricted to respondent only who had raised the matter - Other not permitted to assail selection process after such a long time.

[Para 2]

D. Constitution of India, Article 319 - Ex-member of Public Service Commission - Disqualification from acting as a Chairman of another Selection Board - In the instant case, an ex-member of Public Service Commission acting as Chairman of Selection Board in Defence Research Development Organisation (DRDO) - Held, disqualified.

[Para 2]

Cases Referred :-

Union of India v. U.D. Dwivedi, (1997) 3 SCC 182 : AIR 1997 Supreme Court 1313.

ORDER

S. Saghir Ahmad, J. - The Union of India in the Ministry of Defence is in appeal against the order of the Central Administrative Tribunal. By the impugned order the Tribunal has quashed all promotions from Grade D to Grade E that took place in the year 1985 and 1986 and also directed that the question of promotion from Grade D to Grade E should be reconsidered, without reverting the promotees.

2. Admittedly, the respondent was promoted to Grade D on 1-7-1980. The promotion in the service is governed by a set of rules framed under Article 309 of the Constitution called "the Defence Research and Development Service Rules, 1979". Under the rules which were in force at the relevant point of time a person in Grade D could be considered for promotion to Grade E on completion of five years of regular service in Grade D. It further provided that if an officer had earned three successive "outstanding" reports or four successive "very good" reports in the same grade he shall be assessed for promotion to the next higher grade. In other words, if the respondent would have earned three outstanding reports in Grade D then he could have been considered for promotion to Grade E in the year 1983 and if he would have earned four very good reports he could have been considered for promotion in the year 1984 but as he did not earn those remarks he was not eligible for being considered, till 1985, when his case was duly considered but he was found unsuitable by the Board. The Tribunal however, by the impugned judgment came to the conclusion that even non-consideration of the respondent in the year 1983 is vitiated and as such directed that the respondent's case should be considered afresh with effect from 1983. The said direction of the Tribunal cannot be sustained in view of our conclusion on interpreting Rule 8(2)(d) of the Recruitment Rules. But so far as his consideration in the year 1985 is concerned, wherein he was found unfit, admittedly the Board was presided over by Mr. Sampath who was earlier a member of the Union Public Service Commission and by the year 1985 he had superannuated and yet he was made the Chairman of the Board to assess the suitability of the officers of the Defence Research Organisation. The question whether a member of the Union Public Service Commission after his retirement could at all be the Chairman of any other Selection Board came up for consideration before this Court in the case of Union of India v. U.D. Dwivedi, (1997) 3 SCC 182 : AIR 1997 Supreme Court 1313. This Court on interpretation of Article 319(c) of the Constitution came to hold that such a retired member of the Union Public Service Commission is ineligible to act as the Chairman of another Selection Board and, therefore, the selection made by such Selection Board gets vitiated. The respondent appearing in person relies upon the aforesaid judgment and contends that the Board which disqualified him in the year 1985 was not properly constituted in view of the judgment of this Court and, therefore, he has a right to be considered by a fresh Board for the year 1985 as well as for the year 1986. Mr. P.P. Malhotra, learned Senior Counsel appearing on behalf of the Union of India contends that this question had not been raised before the Tribunal and the respondent will not be entitled to take this plea in this Court. The question being one of constitutional requirement and having been answered by this Court and the Union of India does not dispute the fact that Mr. Sampath was the Chairman of the Board in the year 1985 which Board considered the case of the respondent and found him unfit, we are unable to accept the contention of Mr. Malhotra. In that view of the matter the direction of the Tribunal to consider the respondent for promotion from Grade D to Grade E in the year 1985 and in 1986 must be upheld. We make it clear that notwithstanding the invalidity of the Board which considered the case of promotion in the year 1985 and 1986, no other person who can be said to be aggrieved would be permitted to approach any court or tribunal after this length of time and we are granting this concession only in favour of the respondent because he had been agitating the matter and in fact the Tribunal had granted him the relief. Mr. Malhotra who appears on behalf of the Union of India also states that the Department will have no objection to reconsideration of the case of the respondent alone for promotion from Grade D to Grade E for the year 1985 and 1986 in accordance with the rules and the policy then in force. In the meantime the respondent has already been promoted to Grade E since, in the year 1989 and further promoted to Grade F in the year 1997. In the event the respondent ultimately on reconsideration is found suitable for being promoted to Grade E in 1985 or 1986 he would be entitled to his notional seniority on that score and not any financial benefits.

3. The appeal is disposed of accordingly. No costs.

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