Honble Mr. Justice M. Ramachandran, Vice Chairman (J). In O.A. 338/2008, there was a difference of opinion between a Bench consisting of Honble Mr. Shanker Raju, Member (J) and Honble Mr. Shailendra Pandey, Member (A). On 29.07.2008, Members had recorded that since the Bench is divided as a result of divergent views, it was necessary for complying with the procedure prescribed by Section 26 of the Administrative Tribunals Act. A reference in the following terms had been made: On recommendations of Union Public Service Commission recommending promotion of a Government servant, it is incumbent on disagreement by the Appointments Committee of Cabinet to record reasons whether in this case the reasons recorded by the ACC are sufficient to show meaningful consideration of the matter? In view of the order passed by the Chairman, the matter had been placed before me.
2. After hearing the parties, I am inclined to agree with Honble Mr. Shailendra Pandey, who had recorded the opinion that no interference was warranted in the O.A. and it is to be dismissed. Honble Mr. Shanker Raju by his order dated 28.07.2008 had chosen to allow the application and it had been directed that respondents are to consider the claims of the applicant for promotion as Chief Engineer by holding a review DPC.
3. Mr. O.P. Kalshian and Mr. Rajeev Manglik had presented the matter on behalf of the applicant and respondents. I may state briefly reasons, which prompt me to agree with Mr. Shailendra Pandey. In the process, I would advert to relevant facts, which had led to the filing of the O.A.
4. The applicant was functioning as Addl. Chief Engineer under the Integrated Headquarters of Ministry of Defence. (It is submitted that the officer has retired from service attaining the age of superannuation on 30.06.2008). Steps were taken for empanelling names of personnel for promotion to the post of Chief Engineer in the MES for the year 2007-2008. The services are governed by Indian Defence Service of Engineers (Recruitment and Conditions of Services) Rules, 2004. Ten vacancies were in existence. What was expected of the DPC was to clear ten persons in the feeder zone and supplementarily name five others in an extended panel to be operated in place of officers in the main panel not available for actual promotion. From among officers who fell within the zone of consideration, the DPC had cleared fifteen names, and in due course the matter had been placed before the Appointments Committee of the Cabinet (ACC).
5. The Committee had cleared a total of twelve persons only, which ultimately resulted in a situation whereby the applicant had been given to understand that he had not been cleared. Representations had been made by the applicant, and since he had not been supplied full information, had filed OA 1262/2007, inter alia, challenging the panel, to the extent it adversely affected him.
6. The Tribunal had directed that the applicant be advised of the result of the representation within a stipulated time. A reply from the Directorate General dated 07.01.2008 presently received by him has been produced as Annexure A-2 and it comes within the purview of challenge. He had been informed that the appointing authority after considering the recommendations of the DPC and after objective assessment had approved the empanelment of seven persons alone on the main panel and had approved the five names in the extended panel. The applicants name had been omitted, according to the respondents, since the appointing authority was enjoying full discretion to devise their own methods and procedures for objective assessment of suitability of a candidate. The advancement of an officers career could not have been taken as a matter of course it had been held. This led to the present O.A.
7. As a matter of fact, it could be found that there is no dispute about the position that the DPC had cleared the applicant for selection. The ACC, employing their own parameters had found him as not eligible to be included in the panel. It has come out that the Appointments Committee of the Cabinet had recorded reasons. Mr. Maglik appearing on behalf of the respondents submits that although it was not necessary for the Committee to record reasons, we are not inclined to take notice of the submission in its entirety. When a person is cleared by the DPC, it may amount to a position that as far as his service records are concerned, there might not have been adverse factors. When the procedure further prescribes that even after such clearance, the panel has to be subjected to a process of approval by the Appointment Committee, it naturally follows that the committee has been given power to examine every aspects. ACC would be in a position to finally approve the names or reject the names on well-defined parameters. When a high power body like the DPC clears a person, to hold that such clearance was not acceptable, should be only for good reasons and the reasons, therefore, require to be recorded, as on a later date, the scrutiny should reveal that there was no arbitrariness employed.
8. The second aspect to be examined is as to whether in the present case the recorded reasons by the ACC are sufficient to show meaningful consideration of the matter. The respondents had made available files pertaining to the selection process including the proceedings by the ACC. They are confidential in nature and on examination we find that the reasoning adopted by the ACC does not appear to be arbitrary or misconceived. At the time, DPC cleared the applicant, he had a clean record. But the ACC found that a few days before the date of consideration, the applicant had been imposed with penalty of a censure. We are of the view that this made all this difference. In fact, we find that reasons were recorded in the case of all the three persons who were not recommended by ACC.
9. In support of the submissions made by the counsel, my attention had been invited to a decision of the Supreme Court of India in Union of India Vs. N.P. Dhamania (1995 (1) SLJ 193). The Supreme Court had indicated that the reasons recorded by the ACC are not required to be communicated to the officer concerned. It may be possible for them to differ from the recommendations of the DPC.
10. The decision refers to O.M. dated 30.12.1976 governing the process and especially the procedure to be adopted in a case where the appointing authority does not agree with the recommendations of the DPC. DPC is a recommendatory body and the recommendations are subject to approval by the appointing authority. This, according to Mr. Manglik, explains the position.
11. Adverting to OM dated 27.11.1950, the later O.M. of 1976 noticed that recommendations of the Commission were not usually to be departed from. Unless the Minister was of the opinion that exceptional circumstances existed, departure was permissible. In such cases alone, the reasons for difference were to be communicated to the Commission. However, as highlighted in the present case, this was not necessary to be followed since the Minister had recommended for clearance of the names, and, therefore, there was necessity for forwarding the opinions to the DPC. Advertence is also made to a decision in Union of India & Ors. Vs. Sangram Keshari Nayak (2007 (2) SCC (L&S) 587). Respondents submit that it was a two judge Bench. In Dhamanias case, it was a three Member Bench. Therefore, the observations made in Dhamanias case were required to be followed.
12. But I do not think it might be necessary to dwell upon in these regions. In so far as reasons have been given by the ACC which they were bound to record, and since such reasons constituted sufficient materials for them to come to a conclusion as done in the present case, it may not be necessary for me to call upon further details. Certainly, the relief claimed in the O.A. is not possible to be granted and the case deserves to be dismissed. Ordered accordingly. (M. RAMACHANDRAN) VICE CHAIRMAN (J) `SRD