Delhi High Court
Suresh Kumar Kalra vs Union Of India & Anr on 20 September, 2016
$~17.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 11580/2015
% Judgment dated 20 th September, 2016
SURESH KUMAR KALRA ..... Petitioner
Through : Mr. R.K. Saini, Adv.
versus
UNION OF INDIA & ANR ..... Respondents
Through : Dr. Ashwani Bhardwaj, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S. MEHTA
G.S.SISTANI, J (ORAL)
1. Challenge in this writ petition is to the order dated 06.05.2015 passed
by Central Administrative Tribunal (hereinafter referred to as „the
Tribunal‟) by which OA No.1303/2012 filed by the petitioner was
dismissed by the Tribunal.
2. The brief facts, which are required to be noticed for disposal of the
present writ petition, are that the petitioner was a Member of Indian
Forest Service (Group-A) allocated to UT cadre in the year 1979 in
„Junior Time Scale‟ (JTS). He earned promotions in „Senior Time
Scale‟ (STC) and „Junior Administrative Grade‟ (JAG) in the years
1983 and 1988, respectively. The petitioner joined the respondent in the
year 1988 on deputation and was further appointed as „Deputy
Secretary‟ in the year 1989. Subsequently, the petitioner was absorbed
in Research Analysis Services (in short „RAS‟) being the Senior
Executive Cadre of Research and Analysis Wing (hereinafter referred
to as „RAW‟) in 1989 by maintaining his original seniority of the year
1979. He was further promoted as „Director‟ and „Joint Secretary‟ in
W.P.(C). 11580/2015 Page 1 of 19
the years 1999 and 2004 respectively and became eligible for
promotion to the next higher grade being „Additional Secretary‟ as per
the existing notified recruitment rules. However, as per the petitioner
the respondents held a DPC and considered his name for promotion to
the post of „Additional Secretary‟, but he was not promoted to the said
post. Aggrieved, the petitioner submitted his representation dated
01.08.2011 contending that he should have been promoted to the post
of Additional Secretary as he fully met the benchmark/eligibility
criteria, which is „Very Good‟, for the preceding five years. The
respondents, in response to the said representation, intimated the
petitioner, vide Note dated 18.08.2011, that his promotion from the
rank of Joint Secretary to the rank of Additional Secretary had not been
approved by the competent authority for want of meeting the prescribed
benchmark laid down for the post in question. The petitioner was
additionally informed that the highlights of the Scheme of Promotion
and In situ Upgradation at the level of Joint Secretary, Additional
Secretary and Special Secretary in RAW (hereinafter „In Situ
Promotion Scheme‟ and „DPC Guidelines‟) had been notified by the
Cabinet Secretariat vide Order dated 03.06.2008 and its contents had
been suitably circulated to all the members of the Senior Executive
Cadres posted at Headquarters and at various other stations within and
outside the country. Similarly, a copy of Research & Analysis Wing
(Recruitment, Cadre & Service) Rules, 1975 [RAW (RC&S) Rules,
1975], as updated, had also been circulated to all the Heads of Zones.
3. As per the In Situ Promotion Scheme, the annual ACRs for the past 10
years were to be seen and every grade was assigned particular marks in
the following manner:
W.P.(C). 11580/2015 Page 2 of 19
Grade Marks
Outstanding 5
Very Good 4
Good 3
For a candidate to be declared as „fit‟ for promotion, he must possess a
minimum of 44 marks out of 50 was mandatory, in respect of the past
ten years. This was termed as a „stricter screening standard‟ as the
"benchmark would be appreciably higher than the normal benchmark
of „Very Good‟." As per the stricter standard, the petitioner herein was
not eligible for the promotion. Being aggrieved by the laying of the
new benchmark by the In Situ Promotion Scheme and the consequent
denial of promotion, the petitioner herein approached the Tribunal by
filing an OA, which has been dismissed and has led to the filing of the
present writ petition.
4. Mr. R.K. Saini, learned counsel appearing on behalf of the petitioner,
submits that issuance of any guideline with regard to the benchmark for
promotion lies in the domain of the Appointments Committee of the
Cabinet (hereinafter referred to as „ACC‟), whereas in the present case
the scheme has been approved by the Cabinet Committee on Security
(hereinafter referred to as „CCS‟). It further submitted by the counsel
that the impugned order dated 06.05.2015 passed by the Tribunal is
liable to be set aside as the same has been passed against the settled law
of the land. Mr. Saini also contends that the Tribunal has ignored the
settled law on the subject that the Rules and Regulations approved by
an authority, not having jurisdiction in the matter, would have no
existence in the eyes of law.
5. Learned counsel for the petitioner further submits that the Tribunal has
failed to appreciate the facts and circumstances of the case and instead
W.P.(C). 11580/2015 Page 3 of 19
blindly relied upon the In Situ Promotion Scheme, which has no legal
sanctity. Counsel further submits that the petitioner has suffered grave
injustice in the hands of the respondents since the promotion of the
petitioner to the post of Additional Secretary has been declined after
having taken into consideration the administrative instructions i.e. In
Situ Promotion Scheme which has no authenticity in the eyes of law, as
held by the Supreme Court of India in various judgments passed on this
subject and as such the impugned order, being not tenable in the eyes of
law, is liable to be set aside along with the In Situ Promotion Scheme,
which deserves to be quashed. He further submits that the Scheme has
been approved by the CSS which is a superior authority of the
competent authority, being the ACC. To this end he has relied upon the
judgment of the Supreme Court in The Joint Action Committee of
Airlines Pilots Associations of India & Ors. v. The Director General
of Civil Aviation & Ors., (2011) 5 SCC 435.
6. Counsel for the petitioner further submits that the Tribunal did not
appreciate the fact that the petitioner had an impeccable service record
in his parent Department, i.e. Indian Forest Service, as he was specially
selected by the respondents to join RAW on the basis of his
unblemished service record and moreover the respondents also
accorded the petitioner two promotions to the rank of Director and Joint
Secretary in the respondents‟ organization on the basis of flawless
service track record of the petitioner. Counsel further submits that the
Tribunal has also failed to appreciate the fact that had the petitioner
continued in his parent department he would have easily reached the
highest level in the Forest Department, which is equivalent to the post
of Secretary in the Government of India. Counsel also contends that by
denying the petitioner promotion to the rank of Additional Secretary,
W.P.(C). 11580/2015 Page 4 of 19
which the petitioner otherwise rightfully deserved, the respondents
have ruined the career of the petitioner by completely blocking all
prospects of the further promotions by relying on In Situ Promotion
Scheme, which is devoid of any legal sanctity. Counsel contends that
the Tribunal has, thus, failed to appreciate that the respondents by
bringing in the In Situ Promotion Scheme, which is otherwise liable to
be declared ultra vires as having been approved by an authority lacking
the authority to accord such approval, caused a grave and irreparable
injury to the rights of the petitioner.
7. Dr. Ashwani Bhardwaj, learned counsel for the respondents, submits
that the scheme had been approved by the DoPT, which has full legal
sanctity. Counsel further submits that the Scheme does not violate
Articles 14 and 16 of the Constitution of India.
8. Counsel has drawn our attention to the Government of India
(Transaction of Business) Rules, 1961 made under Article 77 (3) of the
Constitution of India to show the division of work between the
Standing Committees of the Cabinet. As per Rule 6, the standing
committees are to be composed of such ministers as deemed
appropriate by the Prime Minister and are to perform functions as given
in the First Schedule to the Rules. Counsel urges that function no. (v)
read with function no. (i) of the CCS in the First Schedule would cover
the revised DPC and guidelines have been prepared for promotion to
the post from Joint Secretary to Additional Secretary and above. In
support of this contention, counsel has drawn the attention of the Court
to the composition of both these Committees, which is as under:
Committee Composition
ACC 1. Prime Minister
2. Minister of Home Affairs
3. Minister In-charge of concerned Ministry
W.P.(C). 11580/2015 Page 5 of 19
CCS 1. Prime Minister
2. Minister of Finance
3. Minister of Defence
4. Minister of Home Affairs
5. Minister of External Affairs
9. Learned counsel for the respondents has very strongly urged before us
that function no. (v) has to be given a broad interpretation. It is
contended that if the Committee is to revise the manpower requirement
relating to national security and if the Committee is to review the
proposals concerned regarding creation of their pay scales, their pay
band, then the Committee would surely be empowered to deal with the
issue of promotions of the officers of the said Ministry. Counsel
further submits that in fact this Committee was the competent
Committee to take a decision as to whether the revised DPC guidelines
were necessary or not.
10. Learned counsel for the respondents submits, that even if the said
function is decided to be that of ACC, even then the CSS includes all
the ministers present in the ACC. The only difference remains with
respect of the „Minister In-charge of concerned Ministry‟ and this being
the Prime Minister himself in respect of the RAW, the said minister of
also present in the CSS. Therefore, no prejudice can be said to have
been caused to the petitioner by the said In Situ Promotion Scheme
having been made by the CSS.
11. Mr. Saini submits that the power to make the Scheme cannot be derived
from function no. (v) of the First Schedule as the same pertains to the
power to "review the manpower requirements" and not individual
promotions or appointments. He submits that the term „manpower‟
being a mass noun includes the power of a general review of all the
workforce available relating to national security. In order to explain
W.P.(C). 11580/2015 Page 6 of 19
the meaning of the word „manpower‟, learned counsel has relied upon
the meaning given on „thelawdictionary.org‟ which features the Black‟s
Law Dictionary (2nd Ed., 1910), as per which it means
"1. In General, this is the personnel available or engaged for a
specific job or task, as a resource supply. 2. In Economics, this
is the total labour force of a nation. A manpower surplus exists
if there are more people than available jobs. A manpower
deficit exists if available people are fewer than jobs. Includes
both men and women."
12. Mr. Saini has also relied upon Oxford Dictionary of English (3rd Ed.
2012), which defines „manpower‟ meaning
"The number of people working or available for work or
service."
13. The counsel for the petitioner submits that the power to create the
Scheme was, in fact, vested with the ACC as per Function no. (i) of the
ACC given in the First Schedule read with Item no. 1 of the Annexure
I; as per which, the ACC has the power to make all appointments of
and above the rank of Joint Secretary in the Central Government.
14. In support of his argument that ACC is the competent Committee to
take a decision in respect of „appointments‟ which would include
promotions, counsel for the petitioner has handed over to us in Court a
„FAQs on Recruitment Rules‟ released by the DoPT. He relies upon
Question nos. 25 and 27, which reads as under:
"25. What are the methods of recruitments?
Ans. The different methods of recruitments are:
(a) Promotion
(b) Direct Recruitment
(c) Deputation
(d) Absorption
(e) Re-employment
(f) Short-term contract
W.P.(C). 11580/2015 Page 7 of 19
27. What is promotion?
Ans. Promotion is the method of recruitment from feeder
grade post(s) to higher post in the hierarchy as per the
provisions of the Recruitment Rules. If promotion is kept as a
method of recruitment, it is also necessary to lay down the
number of years of qualifying service before the persons in the
field become eligible for promotion. Only regular, and no ad
hoc, period of service is taken into account for purposes of
computing this service."
(Emphasis Supplied)
15. We have heard learned counsel for the parties and considered their rival
submissions. We have also examined the impugned order and the
documents placed on record.
16. The undisputed facts of the case, very briefly, are that the petitioner
was working as a Joint Secretary in the RAS - RAW in 2011, when the
DPC was held for considering candidates for promotion to the post of
Additional Secretary. The petitioner was not promoted owing to the
change in benchmark/ eligibility criteria affected by the In Situ
Promotion Scheme notified by the Cabinet Secretariat on 03.06.2008.
Aggrieved, the petitioner herein had challenged the legality of the In
Situ Promotion Scheme as well as the consequent denial of promotion.
17. It may be noticed that the validity of the In Situ Promotion Scheme was
also in question in an another OA 2830/2008 before the Tribunal;
which has been upheld by an another division bench of this Court in its
judgment C.K. Sinha v. Union of India, 176 (2011) DLT 442 (DB).
The challenge to the Scheme therein was premised on two grounds, i.e.
applicability of the Scheme to regular employees despite the title
mentioning only „In Situ‟ and the validity/ legality in enforcing the
„stricter‟ standard. Both the grounds were rejected and we are
informed that the order has attained finality. At the same time, the
division bench of this Court was not concerned with the present
W.P.(C). 11580/2015 Page 8 of 19
controversy.
18. It may be noticed that the basic challenge in the OA and before this
Court is whether the revised DPC guidelines/ In Situ Promotion
Scheme providing benchmark for promotion at the level of Joint
Secretary and above of the RAS dated 03.06.2008 has the approval of
the competent committee or not. As per the petitioner, the competent
committee would be the ACC; while the respondents contend that the
competent committee would be the CSS.
19. As per the Government of India (Transaction of Business) Rules, 1961,
eight committees were formed by the President at the request of the
Prime Minister. Rule 6 provides that the number and composition of
committees are to be modified at the pleasure of the Prime Minister.
The Prime Minister is also permitted to condone departure from the
rules under Rule 12. For the purposes of the present case, two
Committees are required to be examined, being ACC and CCS.
20. At this stage, we deem it appropriate to reproduce the relevant
functions of both these Committees as given in the First Schedule to the
Government of India (Transaction of Business) Rules, 1961:
"Name of the Functions
Standing
Committee
1.Appointments (i) To take decisions in respect of appointments
Committee of specified in Annexure I to the First Schedule to
the Cabinet the Government of India (Transaction of
Business) Rules, 1961;
...
2. Cabinet (i) to deal with all Defence related issues;
Committee on ...
Security
(v) to review the manpower requirements relating
to national security including proposals
concerning creation of posts carrying the pay
"Name of the Functions
Standing
Committee
scale or pay band plus Grade Pay equivalent to
that of a Joint Secretary to the Government of
India and higher, and setting up new structures
to deal with security related issues;
..."
(Emphasis Supplied)
21. We also deem it appropriate to reproduce the relevant excerpt of
Annexure I to the First Schedule, which reads as under:
"ANNEXURE I TO THE FIRST SCHEDULE
APPOINTMENTS REQUIRING THE APPROVAL OF THE
APPOINTMENTS COMMITTEE OF THE CABINET
Departments Appointments
All Ministries/ 1. Secretariat appointments of and above the
Departments rank of Joint Secretary in the Central
Government
..."
22. While it is the case of the petitioner that any amendment to the
recruitment rules or any guidelines ought to have been prepared with
regard to holding of DPC for the post of Joint Secretary to Additional
Secretary would squarely fall within the domain of the ACC as per
Function no. (i) of the Schedule read with Item No. 1 of Annexure I as
reproduced by us in the preceding paragraphs. Thus the sum and
substance of the arguments of the learned counsel for the petitioner is
that if the ACC was the only competent authority authorised to revise
the DPC guidelines, any decision taken by the CCS Committee would
be void ab initio and, as a necessary consequence, any decision taken
on the basis of the revised guidelines is liable to be struck down.
23. Mr. Saini, counsel for the petitioner, has during the course of
arguments, submitted that the petitioner has since retired and, thus, he
would press this petition only for the purpose of being considered in a
revised DPC and in case he succeeds, he would restrict his claim only
to notional promotion and pension based on the pay which would be
fixed after notional promotion. He also submits that it would be
irrelevant as to whether the composition of both the Committees is
same or not or larger, as in the present case, for the reason that only
ACC was competent to take a decision in the matter and the CCS even
having a larger composition of members would not be competent as it
was not prescribed committee. To this end he has relied upon the
judgment of the Supreme Court in The Joint Action Committee of
Airlines Pilots Associations of India (Supra), more particularly
paragraphs 26 to 28, which read as under:
"26. The contention was raised before the High Court that the
Circular dated 29-5-2008 has been issued by the authority
having no competence, thus cannot be enforced. It is a settled
legal proposition that the authority which has been conferred
with the competence under the statute alone can pass the order.
No other person, even a superior authority, can interfere with
the functioning of the statutory authority. In a democratic set-up
like ours, persons occupying key positions are not supposed to
mortgage their discretion, volition and decision-making
authority and be prepared to give way to carry out commands
having no sanctity in law. Thus, if any decision is taken by a
statutory authority at the behest or on suggestion of a person
who has no statutory role to play, the same would be patently
illegal. (Vide: Purtabpore Co. Ltd. v. Cane Commr. of Bihar,
AIR 1970 SC 1896, Chandrika Jha v. State of Bihar, AIR 1984
SC 322, Tarlochan Dev Sharma v. State of Punjab, AIR 2001
SC 2524 and Manohar Lal (D) by L.Rs. v. Ugrasen (D) by L.Rs.
& Ors, AIR 2010 SC 221).
27. Similar view has been reiterated by this Court in Commr. of
Police v. Gordhandas Bhanji, AIR 1952 SC 16, Bahadursinh
Lakhubhai Gohil v. Jagdishbhai M. Kamalia, AIR 2004 SC
1159 and Pancham Chand v. State of H.P., AIR 2008 SC 1888
observing that an authority vested with the power to act under
the statute alone should exercise its discretion following the
procedure prescribed therein and interference on the part of
any authority upon whom the statute does not confer any
jurisdiction, is wholly unwarranted in law. It violates the
constitutional scheme.
28. In view of the above, the legal position emerges that the
authority who has been vested with the power to exercise its
discretion alone can pass the order. Even a senior official
cannot provide for any guideline or direction to the authority
under the statute to act in a particular manner."
(Emphasis Supplied)
24. Prior to proceeding further, we deem it appropriate to deal with the
judgment sought to be relied upon by the counsel for the petitioner.
Unfortunately, the same does not put the present controversy to rest. In
the said judgment the challenge was to the Circular dated 29.05.2008
issued by the Director General of Civil Aviation, whereby the CAR
2007 was kept in abeyance. As the CAR 2007 mandated greater rest
time for pilots, the Airlines Pilots‟ Association had challenged the order
as being issued without any authority to do so. The Supreme Court
ultimately held that the Director General of Civil Aviation was
competent to issue such a direction under Rule 133-A read with Rule
29-C of the Aircraft Rules, 1937, which is evident from the following
paragraphs:
"29. It cannot be said that the Circular dated 29-5-2008 was
either issued illegally or without any authority. Admittedly,
DGCA is competent to issue special directions and the same
had been issued by him, though may be with the consultation of
some other authorities. However, it cannot be denied that
DGCA was involved in the process. The authority which had
been in consultation with DGCA had been provided for under
the business rules and it cannot be held by any stretch of
imagination that the Ministry of Civil Aviation is not an
authority concerned with the safety measures involved herein.
The authorities are competent to issue the said regulations.
Exercise of the power is always referable to the source of power
and must be considered in conjunction with it. In view of the
fact that the source of power exists, there is no occasion for the
Court to link the exercise of power to another source which may
invalidate the exercise of power.
...
33. The High Court held that DGCA is directly under the
control of Civil Aviation Ministry and considering the rules of
business, the Government being the appropriate authority to
formulate necessary policy in relation to the subject-matter in
issue, and the Government in its wisdom having decided after
taking into consideration all the representations made from
various sections, has appointed a Committee to formulate CAR
in relation to the matters enumerated under the Order dated 29-
5-2008, and on that count, DGCA in exercise of its power under
Rule 133-A read with Rule 29-C of the 1937 Rules issued the
Circular dated 29-5-2008, and therefore, no fault can be found
with the same."
(Emphasis Supplied)
25. Therefore, it is clear that the aforegoing discussion that the said
judgment was given in an entirely different factual background.
Further, the judgments relied upon the by Supreme Court in paragraph
26 to 28 deal with a scenario where the competent authority had
succumbed to political pressure or had acted on behest of persons
having no statutory role to play or the appellate/ revisional authorities
had subsumed the power of the competent original authorities. That is
not the controversy in the present case as they do not deal with a
situation wherein there are two independent committees having similar
compositions. Even otherwise, the Standing Committees of the
Cabinet stand on a different footing altogether.
26. Now, to test the arguments of Mr. Saini, counsel for the petitioner, we
have extracted the composition of both the Committees in paragraph 8
aforegoing. No doubt, Mr. Saini is right that merely because the CCS
has a larger composition, it may not be the competent Committee to
revise the DPC guidelines as number of members may not be relevant
but what is relevant is their function and power.
27. In our view, what is important is as to whether in the competent
committee, the concerned minister was present, i.e. Minister In-charge.
No doubt, both these Committees are chaired by the Prime Minister;
there is no doubt that the Minister In-charge is present in the ACC, but
it is to be seen as to whether in the CCS the concerned Minister In-
charge present or not. Incase of RAW, the Minister In-charge would be
the Prime Minister only and therefore, the absence of Minister In-
charge in CCS is of no consequence as the key ministers, i.e. the Prime
Minister and the Minister of Home Affairs, are present in both.
28. Another vital aspect, which requires consideration, is as to whether the
guidelines were amended/revised after due applications of mind or
whether there was a proper study, proper note and preparation with
regard to the revision of the DPC guidelines.
29. The respondents have produced in Court original file of the
Department, which has been examined and which shows that a proposal
dated 27.02.2008 of Secretary (RAW), the legal opinion dated
03.04.2008 of the Ministry of Law and Justice, the Cabinet Note for
CCS dated 03.12.2007, approval of CCS dated 30.05.2008, In Situ
Promotion Scheme dated 03.06.2008, approval of Minister In-charge
i.e. Prime Minister to the recommendations of the Committee of
Secretaries (in short „CoS‟) dated 22.12.2006 were all placed when the
Minutes of the CoS dated 23.8.2006 were placed in the meeting, when
a final decision was taken.
30. The purpose of noticing the above factors is that this Court is satisfied
that the decision was taken by the CCS after proper application of mind
and based on the proposal and the opinion of the Ministry of Law and
Justice.
31. As far as the contention with regard to function no. (v) of the CCS is
concerned, though a cursory reading of the function would certainly
give an impression that CSS has the power to review the manpower
requirement; but on a meticulous reading of the function, in our view,
does not support the arguments of Dr. Bhardwaj but shows that the
CCS had dwelled on the issue under the bona fide belief and
impression that the powers under function no. (v) are broad and, thus,
the Committee was competent to take a decision in the matter.
32. Be that as it may, any further deliberation upon the powers/ functions
of the committees may be merely academic in nature. We must analyse
the nature of the Government of India (Transaction of Business) Rules.
The structure of the executive in India, or any parliamentary
democracy, is that the Head of the State/ President is merely a
ceremonial position, while the actual head is the Prime Minister who
discharges all the functions along with his Council of Ministers. In
order to overcome the problem of the whole body of Council of
Ministers sitting on every decision, the framers of our constitution had
incorporated Article 77 (3) in the Constitution enabling the making of
rules for more convenient transaction of business by allocation of the
same among the ministers. It was under this provision that the
Government of India (Transaction of Business) Rules were framed.
They remain administrative in nature and substantial compliance with
the same suffices to uphold the validity of the orders. To this end, we
are fortified by the following observations of the Supreme Court in
Crawford Bayley & Co. v. Union of India, (2006) 6 SCC 25:
"20. It was next contended with reference to the Allocation of
Business Rules that the Central Government in the Urban
Department can appoint an Estate Officer but in the present
case, the Finance Department has appointed an Estate Officer
which is in violation of the Allocation of Business Rules, 1961.
Though the Division Bench dealt with this aspect exhaustively
in its judgment and held that the provisions of the Business
Rules are not mandatory and will not vitiate the appointment,
we fully agree that the Rules of Business are administrative in
nature for governance of its business of the Government of
India framed under Article 77 of the Constitution of India. In
this connection, the Division Bench referred to the decision of
this Court in Dattatreya Moreshwar Pangarkar v. State of
Bombay [1952 SCR 612 : AIR 1952 SC 181 : 1952 Cri LJ 955].
There analogous Rules of Business framed by the State under
Article 166 of the Constitution of India came up for
consideration and it was observed that they are directive and no
order will be invalidated, if there is a breach thereof. ..."
(Emphasis Supplied)
33. The Supreme Court in Narmada Bachao Andolan v. State of M.P.,
(2011) 12 SCC 333 after surveying a conspectus of judgments on the
subject had come to the conclusion that mandatory compliance with the
Business Rules is necessary if there are financial implications involved;
otherwise substantial compliance would suffice. The relevant
paragraphs read as under:
"32. Earlier cases of this Court suggest that the Rules of
Business are to be construed as directory so that substantial
compliance with them would suffice to uphold the validity of the
relevant order of the Government. (See State of U.P. v. Om
Prakash Gupta, AIR 1970 SC 679).
33. Similarly, in R. Chitralekha [AIR 1964 SC 1823] , a
Constitution Bench of this Court had observed that it is settled
law that the provisions of Article 166 of the Constitution are
only directory and not mandatory in character. In para 4 it was
held as under: (AIR p. 1829)
"4. ... This view has been reaffirmed by this Court in
subsequent decisions: see Ghaio Mal & Sons v. State of
Delhi [AIR 1959 SC 65] and it is, therefore, settled law
that provisions of Article 166 of the Constitution are only
directory and not mandatory in character and, if they are
not complied with, it can be established as a question of
fact that the impugned order was issued in fact by the State
Government or the Governor."
(emphasis added)
The judgment in R. Chitralekha has been subsequently cited for
this proposition in Bannari Amman Sugars Ltd. v. CTO [(2005)
1 SCC 625] .
34. In Dattatraya Moreshwar Pangarkar v. State of Bombay
[AIR 1952 SC 181] a Constitution Bench of this Court held that
an omission to make and authenticate an executive decision in
the form mentioned in Article 166 does not make the decision
itself illegal, on the basis that its provisions were directory and
not mandatory.
35. However, in the recent decision in MRF Ltd. v. Manohar
Parrikar [(2010) 11 SCC 374] , a two-Judge Bench of this
Court has sought to distinguish the abovementioned judgments
and taken the view that in case there is non-compliance with the
Business Rules framed under Article 166(3) of the Constitution,
the notification issued in violation of the Business Rules is void
ab initio and all actions consequent thereto are null and void.
The Court held:
"107. Thus, from the foregoing, it is clear that a decision
to be the decision of the Government must satisfy the
requirements of the Business Rules framed by the State
Government under the provisions of Article 166(3) of the
Constitution of India. In the case on hand, as has been
noticed by us and the High Court, the decisions leading to
the notifications do not comply with the requirements of
the Business Rules framed by the Government of Goa
under the provisions of Article 166(3) of the Constitution
and the notifications are the result of the decision taken by
the Power Minister at his level. The decision of the
individual Minister cannot be treated as the decision of the
State Government and the notifications issued as a result
of the decision of the individual Minister which are in
violation of the Business Rules are void ab initio and all
actions consequent thereto are null and void."
...
37. We have considered the larger Bench judgment of this Court
in R. Chitralekha and taken note of the fact that MRF Ltd. is
distinguishable from the case at hand since that case dealt with
rules pertaining to financial implications for which there were
no provisions in the Appropriation Act, and so the rules
required mandatory compliance. Here, there is no issue of
financial repercussions. The issue here is whether the Council
of Ministers is permitted to delegate the power to amend its
decision to a Committee of Ministers consisting of the Ministers
in charge of the Departments concerned and the Chief Minister,
and whether such amendment needs to be consistent with the
Rules of Business framed under Article 166 of the Constitution
of India. The case law provides that delegation is permissible
and that Rules of Business are directory in nature. In view of
the above, we find that delegation of power is permissible.
Submissions so made on behalf of the appellant in this regard
are preposterous."
(Emphasis Supplied)
34. From the aforegoing discussion, it is clear that substantial compliance
with the rules would suffice. In the present case, the CCS has approved
the DPC guidelines/ In Situ Promotion Scheme under the bona fide
impression that it was entitled to do so. Further the ministers, who
would have constituted the ACC, i.e. Prime Minister and Minister of
Home Affairs, were present in the meeting of the CCS. The decision
was taken after thorough deliberation and proper application of mind.
Therefore, even if we accept the contention of the petitioner that the
ACC was the competent authority, even then the same does not vitiate
the decision as there was substantial compliance with the rules.
35. Having held so, now we need to examine one last aspect, being whether
any prejudice was caused to the petitioner owing to the decision having
been taken by the CCS. This is necessitated as it is settled law that
when procedural rules, of a non-fundamental nature, are not complied
with then objections have to be judged on the touchstone of prejudice.
36. During the course of hearing, we had specifically asked the learned
counsel for the petitioner as to how the petitioner has been prejudiced
by a decision which has been taken by the CCS and not by the ACC; to
which counsel for the petitioner submits that the petitioner has been
prejudiced to the extent that he was not considered in the DPC as he did
not meet the benchmark as per the revised guidelines, as per which the
ACRs of the last ten years were to be considered.
37. The said explanation of the petitioner is without any force. Prejudice
has to be judged from the angle of non-compliance with the procedure
and not the final decision which is taken. Thus, in our view, even
though the competent Committee as per the petitioner was the ACC, no
prejudice has been caused to the petitioner as in both the Committees
the Prime Minister, Minister of Home Affairs and the Minister In-
charge, which in the present case is the Prime Minister, was present.
Further, the Committee was fully seized of the matter.
38. The original file shows an in-depth study, which was carried out before
the necessary guidelines were varied. Thus, we are of the view that the
petitioner was not prejudiced in any manner and he cannot complain
that simply instead of ACC the matter was taken up by the CCS.
39. Resultantly, we find no infirmity in the impugned order passed by the
Tribunal. The present writ petition is dismissed accordingly.
G.S.SISTANI, J
I.S. MEHTA, J
SEPTEMBER 20, 2016
//msr
